Supreme Court judgment and visa age – another victory

R (on the application of Quila and another) (FC) (Respondents) v Secretary of State for the Home Department (Appellant) R(on the application of Bibi and another)(FC) (Respondents) v Secretary of State for the Home Department (Appellant) [2011] UKSC 45 (12 October 2011)

SSHD’s refusal  to grant visas to the respondent spouses under rule 277 of the Immigration Rules SSHD breached Article 8 ECHR.

Background

This was an appeal to the Supreme Court arising from the judgment of the Court of Appeal   (see our previous post for an explanation, and see here for why we believe that immigration law is ill-suited to dealing with forced marriage)

The case arose out of the amended Rule 277 of the Immigration Rules. Introduced on 27 November 2008 the amendment prevented the granting of entry clearance/leave to remain to spouses/partners in circumstances where either the applicant or the sponsor would be aged under 21.

There were limited exceptions to this requirement in the form of the Home Office policy for ‘clear exceptional and compassionate cases’ which would violate Article 8 ECHR (conceded in the first instance) and subsequently for members of the armed forces to whom the former age limit of 18 applied. Cases falling outside of these limited exceptions however were automatically refused.

The Rule is believed to have affected approximately 5000 thousand or so young couples per year, 96% of whom were believed to be in genuine marriages. The rationale for the introduction of the scheme was to prevent forced marriages from taking place.

The facts

The facts of the appellants in this case were that they were both non- EEA nationals who sought entry clearance/leave to remain as the spouses of  British citizens.  It was accepted by all parties concerned that there was no question of forced marriage in both of the cases, however both parties were refused on the basis of the amended Rule 277 and were unable to bring themselves within any of the specified exceptions.

The appellant whom JCWI represents – Diego Andres Aguilar Quila – requested that the Rule was waived because his marriage was genuine and not forced, however SSHD refused to do so, on the grounds that this would damage the rigidity of the scheme – this was said to be  a deliberate feature of the scheme. Accordingly he left the UK and returned to Chile, accompanied by his wife.  The couple subsequently moved to Ireland where Diego was entitled to join Amber as the family member of an EEA national exercising Treaty rights as a student. In both cases, following the judgment of the Court of Appeal, the applicants in both cases had been granted visas, but the case continued to be fought in their names.

Supreme Court judgment

The Court held that Article 8 ECHR was engaged, and the sole question was therefore whether SSHD’s actions in these cases pursuant to rule 277 were a proportionate response to addressing the problem of forced marriage.

It was held that whilst rule 277  was  rationally connected to the objective of deterring forced marriages, SSHD’s decisions made pursuant to it were not a proportionate response to  protecting those liable or subject to forced marriage given:

1. the absence of conclusive evidence showing that the Rule had the desired effects of deterring or preventing forced marriage. In fact there was a question mark as to whether the Rule did more harm than good.

2. the scale and severity of the impact of the measures on those who wished to enter into voluntary marriages (we believe some 5000 or so couples are likeky to have been affected by the Rule and)

Furthermore, it was difficult to conceive of a situation where SSHD could ever avoid infringement of Article 8 ECHR when applying amended rule 277 to an unforced marriage.

Dissenting judgment

Lord Brown delivered the dissenting judgment and argued that the measures were proportionate. He argued that the Court should in this case accord the Government a very significant area of discretionary judgment. In reaching his judgment he is influenced by practice across Europe, the absence of full information about the extent of forced marriages, Kama Nirvana’s evidence (NGO), and the existence of the exceptional circumstances provision, together with the fact that the measures delay rather than altogether ban residence together.

Discussion of the evidence

A key point that comes up in this case is about the absence of evidence that the Rule and decisions made under were in any way effective in actually addressing forced marriage(this is timely given the similar approach taken in the family migration consultation). In this respect it is particularly worth noting:

a. research from Denmark (they raised the visa age in 2002 to 24) did not confirm that the reform reduced forced marriage, but did highlight the negative and socially alienating effects on young spouses

b.  there is no evidence showing that raising the visa age to 21 in Germany and Netherlands led to a reduction in forced marriage

c. the report the Home Office commissioned by Professor Hester concluded that an increase would not only be discriminatory but would  be detrimental to victims/potential victims. In fact, as Free Movement pointed out some time ago  , the report states that the measures could lead to:

Increased risk of physical and psychological harm to victims and potential victims of forced marriage, which included young British women being taken abroad to marry and kept there forcibly until they were old enough to sponsor their spouses; entering the UK with false documentation; and implications for mental health, particularly attempted suicide and self-harm. The concern was that an increase in age could also prevent victims from accessing some potential sources of support, such as those provided via child protection legislation and education-based counselling support.

d. the Home Affairs Committee expressly stated that there should be no increase in the visa age without conclusive evidence that it would deter forced marriage- research was never undertaken by SSHD or the UKBA on this point

e. research shows that the desire to obtain a visa is not the predominant motive   for forcing a child into marriage- it is in fact 12th of the list of 13 motives given in the statutory guidance.

Legal discussion

Lord Wilson and Lady Hale both depart from the Abdulaziz approach when it comes to the question of engagement of Article 8 ECHR, and the distinction between positive obligations and negative ones- SSHD attempted to use Abdulaziz  to argue that there was no engagement of Article 8 ECHR in this case.  They both conclude that Abdulaziz should not be followed given the more recent approach by the ECtHR in the Tuquabo-Tekle case and Boultif.  Lord Wilson notes at para 43 that  ‘the often elusive distinction between positive and negative obligations should not, in this context generate a different outcome.’

Whilst agreeing with Lord Wilson’s analysis in relation to Article 8 ECHR, which empahsizes the colossal impact on marriages which were not forced, and the absence of evidence about the extent to which the the measures were effective in achieving their aim, Lady Hale also emphasizes the vice of the ‘blanket nature’ of the of the scheme –  regardless of whether marriages are genuine or not the have been caught by the provisions as there is no mechanism through which such cases can be distinguished. She also in contrast to Lord Wilson employs Article 12 ECHR (the right to marry) to aid analysis of  the Article 8 ECHR interference.

Next steps

We are waiting for SSHD’s response to this judgment. In the meantime whilst these cases were concerned with the individual decisions made by SSHD in relation to Quila and Bibi, it is clear that SSHD will need to make changes to the Rules or their operation in order to comply with the judgment given that the Court noted that it would be difficult to imagine a case where the SSHD avoided a breach of A8 ECHR when applying the amended rule 277 to a case of non forced marriage.

We will update about this in due course, but in the meantime those who have had applications refused under Rule 277 should write and request that decisions are reconsidered, and those who are contemplating making an application should go ahead and do so.