A Home Office ban on foreign spouses settling in the UK until they are 21 has been ruled unlawful by the Supreme Court
The age was raised by three years in an attempt to prevent forced marriages. Paragraph 277 of the Immigration Rules was amended with effect from 27 November 2008 to raise the minimum age from 18 to 21 for a person either to be granted a visa to settle in the UK as a spouse or to sponsor another for a marriage visa.
In R (on the application of Quila and anor) v Home Secretary [2011] UKSC 45, however, the justices declared the amendment a breach of the respondents’ Art 8 right to family life of “sufficient gravity” as to be unlawful.
Aguilar Quila, a Chilean national, and Amber Aguilar, a UK citizen, married in 2008, when she was 17 and he was 18. He was refused entry and the couple lived in Chile and Ireland until they were old enough to move to the UK. Bibi, a Pakistani national, and Mohammed, a UK citizen, had an arranged marriage in Pakistan in 2008 but their visa application was refused as they were both 18-years-old.
Habib Rahman, chief executive of the Joint Council for the Welfare of Immigrants, said: “This was a law introduced on the hoof, which had no discernible effect on forced marriage, but infringed on the rights of UK citizens to live in the UK with their partners. We are delighted to see it consigned to the scrap heap of misguided legislation. We now ask the government to consider other policies they are generating on family immigration.
“They habitually frame such policy as helping the welfare of migrants and others, whereas in truth their rules are solely aimed at limiting immigration. Theresa May should rethink these attacks before some of them meet a similar fate.”
Delivering judgment, Lord Wilson said: “The refusal to grant marriage visas either condemned both sets of spouses to live separately for approximately three years or condemned the British citizens in each case to suspend plans for their continued life, education and work in the UK and to live with their spouses for those years in Chile and Pakistan respectively.
“Unconstrained by authority, one could not describe the subjection of the two sets of spouses to that choice as being other than a colossal interference with the rights of the respondents to respect for their family life, however exiguous the latter might be.”
He said the Home Secretary “clearly fails to establish…that the amendment is no more than is necessary to accomplish her objective and…that it strikes a fair balance between the rights of the parties to unforced marriages and the interests of the community in preventing forced marriages.
“On any view it is a sledge-hammer but she has not attempted to indentify the size of the nut.”
However, Lord Brown, dissenting, said: “The extent to which the rule will help combat forced marriage and the countervailing extent to which it will disrupt the lives of innocent couples adversely affected by it is largely a matter of judgment.
“Unless demonstrably wrong, this judgment should be rather for government than for the courts. Still more obviously, the comparison between the enormity of suffering within forced marriages on the one hand and the disruption to innocent couples within the 18-21 age group whose desire to live together in this country is temporarily thwarted by the rule change, is essentially one for elected politicians, not for judges.”
He added: “Are we really to say that the position is plain and that Germany, Austria, the Netherlands, Belgium, Denmark and other such Council of Europe states with similar rules must also necessarily be in breach of Art 8?”
Immigration minister, Damian Green said: “This is another very disappointing judgment, which overturns a policy that exists and is judged to be consistent with the European Convention on Human Rights in other European countries.
“The judges themselves agreed increasing the marriage visa age had a legitimate aim. We believe this decision will put vulnerable people at risk of being forced into marriage.”
