Marriage—Right to marry—Immigration

House of Lords; Lord Bingham, Lord Rodger, Baroness Hale, Lord Brown and Lord Neuberger; 30 July 2008

Section 19(3)(b) of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (AI(TCE)A 2004) should be read as meaning “has the written permission of the Secretary of State to marry in the United Kingdom, such permission not to be withheld in the case of a qualified applicant seeking to enter into a marriage which is not one of convenience and the application for, and grant of, such permission not to be subject to conditions which unreasonably inhibit exercise of the applicant’s right under article 12 of the European Convention”.

Monica Carss-Frisk QC, Angus McCullough and Robert Wastell (instructed by the Treasury Solicitor) for the secretary of state. Ramby de Mello, Satvinder Singh Juss and Adrian Berry (instructed by David Tang & Co) for Mr Baiai and Ms Trzcinska. Manjit Gill QC and James Collins (instructed by Sheikh & Co) for Mr Bigoku, Ms Agolli, and Ms Tilki.

Under s 19 of AI(TCE)A 2004, persons subject to immigration control required a certificate of approval issued by the secretary of state if they wished to marry in the UK. Section 19 did not apply to persons whose marriage was solemnised according to the rites of the Church of England.

The policy of the secretary of state was to refuse a certificate of approval to anyone who did not have a valid right to enter or remain in the UK for more than six months, and with more than three months of that period outstanding. Such persons wishing to marry had to leave the UK and either marry abroad or apply from abroad for entry clearance to marry in the UK.

The exceptions to the policy were where the applicant’s initial application for immigration status, or an appeal in that connection, had been outstanding for more than 18 months or if there were compelling compassionate circumstances which made it unreasonable to expect the couple to travel and marry abroad. The object of the secretary of state in promoting the legislation was to prevent the persons to whom it applied from entering into marriages of convenience (sham marriages), in the interest of disabling such persons from obtaining advantages in the immigration process because of their married state. Five claimants made three applications for judicial review of the secretary of state’s refusal to grant, or delay in granting, certificates of approval. The judge held that s 19 of AI(TCE)A 2004 was incompatible with the right to marry in Art 12 of the European Convention on Human Rights. He held that the scheme was a disproportionate interference with the Art 12 rights of the persons to whom it applied. The Court of Appeal affirmed that decision and the secretary of state appealed to the House of Lords.

Lord Bingham:
The secretary of state submitted, first, that the right to marry protected by Art 12 was not an absolute right.

His lordship held that the Strasbourg jurisprudence required the right to marry to be treated as a strong right which might be regulated by national law both as to procedure and substance but might not be subjected to conditions which impaired the essence of the right.

The second proposition was that conditions on the right to marry had to satisfy the requirement of proportionality. That proposition was too broad. A national authority might properly impose reasonable conditions on the right of a third-country national to marry in order to ascertain whether a proposed marriage was one of convenience and, if it was, to prevent it.

The third proposition was that such permissible restrictions on the right to marry could affect marriages which were genuine and not only sham marriages. But a member state was entitled to take steps to prevent marriages of convenience.

The fourth proposition was that the assessment of whether the s 19 scheme essentially involved consideration of whether it struck a fair balance between the protection of individual rights and the general interests of the community. But the problem in the instant case was not aptly analysed in terms of striking a fair balance. The s 19 scheme, insofar as it restricted the right to marry, could be justified only to the extent that it operates to prevent marriages of convenience which, because they were not genuine marriages, did not earn the protection of the right.

The fifth proposition was that the s 19 scheme involved an area of broad social policy where the judgment of the legislature and executive should be given considerable weight. That proposition was too sweeping. The court could not abdicate its function of deciding whether as a matter of law the s 19 scheme violated Art 12. The answer to that question did not turn on considerations of broad social policy but on an accurate analysis of the scheme and the law.

Legally objectionable
Apart from its discriminatory features, which the secretary of state had said she would remove, s 19, read alone, was not legally objectionable. It was open to a member state, consistently with Art 12, to seek to prevent marriages of convenience. There was nothing in the text of s 19 which authorised or required the withholding of permission to marry in the case of any marriage which was not a marriage of convenience. Indeed, the section makes no reference to marriages of convenience or sham marriages and gave no hint of the grounds on which permission might be granted or withheld. Section 19 could be operated, consistently with its terms and with Art 12, in a manner which required persons subject to immigration control to give notice of a proposed marriage, enabled an appropriate authority to investigate whether the proposed marriage would be one of convenience and provided for the withholding of permission only in cases where it appeared that the proposed marriage would be one of convenience.

Subject to one qualification, the Immigration (Procedure for Marriage) Regulations 2005 (SI 2005/15) were similarly unobjectionable. The qualification related to the prescribed fee. It was plain that a fee fixed at a level which a needy applicant could not afford might impair the essence of the right to marry which was in issue. A fee of £295 (£590 for a couple both subject to immigration control) could be expected to have that effect.

His lordship would therefore set aside the declaration of incompatibility made in the courts below (save as to discrimination). Subject to that correction the appeals would be dismissed.

Lord Rodger, Baroness Hale, Lord