Marriage case – update

So as expected, we finally have it. SSHD’s application for permission to appeal to the Supreme Court in relation to the visa age judgment yesterday pinged through our email inbox.

What is she arguing?

Well, SSHD is appealing on four grounds. Firstly, she thinks that the majority in the Court of Appeal  got in wrong when they said the Abdulaziz principle (no general obligation to respect the choice by married couples of the country of matrimonial residence) did not apply to the claimants as they were British citizens.

Secondly, and linked to the above reasoning, is the argument that the majority in the Court of Appeal were wrong to hold that, on the facts of the cases, interference with family life was sufficiently serious as to breach Article 8 (1) (respect for family life) ECHR, and that this therefore required justification under Article 8 (2) ECHR (i.e. must be shown to be necessary in a democratic society for the protection of the rights and freedoms of others).

The third ground is that the majority in the Court of Appeal were wrong to find that the claimants had common law rights (i.e. to live together as a married couple in the UK) that were breached, on an application of the doctrine of proportionality at common law.

Finally, they’re arguing that the finding that Rule 277 was disproportionate in its effects on the claimants other than British citizens was wrong, not only in relation to the particular facts of the claimants, but also in relation to the policy more generally.

What does this mean?

Well we need to wait and see what the Supreme Court makes of all of this, and will keep you updated.

Our client has been told, that subject to completing an entry clearance form without a fee, and subject to no material change in circumstances, he should be granted entry clearance. As such, we still take the view that anyone refused on the basis of the Rule (whether they have a British spouse or not) should put in further submissions, and it would now seem, complete an entry clearance form (without a fee). See our previous post for further detail.

Some reflections

One can’t help but feel a profound sense of disappointment at this whole affair. The whole point behind the Human Rights Act was that it was designed to bring about a cultural shift both in the way in which policy is actually made, but also more generally in society itself. Policy makers instead  have chosen to use it as a tool that absolves them from responsible, accountable and frankly thoughtful evidenced based policy making safe in the  knowledge that they can  pass the buck to someone else (in this case the judges) for policy decisions in  more politically challenging areas. Regrettably if this case is anything to go by, that trend looks set to continue under the Coalition Government.

About jcwi

Joint Council for the Welfare of Immigrants is a key campaigning voice in the field of immigration, asylum and nationality law and policy. It is completely independent from government funding, remaining entirely free from government influence. View all posts by jcwi

3 responses to “Marriage case – update

  • Michelle Hunter

    This battle is really starting to bug me! I have a daughter who wanted to get married young as i did and who wanted to live with her husband and start a family young as i did. It was ok for me as i married a british citizen but because her husband comes from Algeria our government finds it within their rights to stop her! Of course it can be said why doesnt she go there ect but the fact is i have Multiple Sclerosis and my daughter cares for me on a daily basis. I feel guilty that she cant be with her husband because im so sick. If i had a choice i would be healthy! My daughter is only 19 and has been married 2 years, at her age i already had 2 children with my husband and we are still together! I believe her human rights are being breeched and its time our government saw that not all people are in the situation where they can just move country. She proved in front of a tunisian judge there marriage was for love and he allowed the marriage so who are our government to question that. It makes me so angry!!

  • khan

    Hi,i m from pakistan.my wife is from uk.i m 20 and going to be 21 this year and my wife is 25 and we are living in pakistan.Can we apply for visa now or wait for the rules change.tell me.

  • A pledge of support for women on International Women’s day – unless you’re a migrant… « Joint Council for the Welfare of Immigrants

    […] Home Office statistics show that women account for some 60% or so of spouse/partner based migratory flows to the UK. As May notes in her article, educational opportunities vary considerably across the globe, and girls actually account for two thirds of those who have no education at all.   Put the two together, and it becomes readily apparent just who will lose out from the recent introduction of pre-entry language tests for spouses and partners, and also the Government’s robust defence of the marriage visa age rule. […]

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