The
attack on family immigration in recent years has been three-prong, with the increase in the
age the sponsor and applicant must be to 21 (Quila), introduction of pre-entry English
language requirements (Chapt/Bibi) and the financial requirement (MM).
I attempt over the next few weeks to shed light on what has happened in each of these cases because of the common angle .
I attempt over the next few weeks to shed light on what has happened in each of these cases because of the common angle .
Quila:
Age increased from 16 to 18, and to 21
For
sponsorship of a foreign partner, the Home Office under a Labour government further
increased qualification age of both the sponsor and applicant to 21 from
November 2008, claiming this would reduce the incidence of forced marriages as most cases of
such marriages involve female victims aged between 13 and 30.
HO
submitted evidence that from January 2008 to October 2009, the Forced Marriage
Unit, a collaboration of FCO and HO, had gotten involved in 702 cases, of which
175 cases led to their taking action to secure ‘overseas rescue and
repatriation’.
Personally
I don’t see involvement in 702 cases – without information on how many of these
cases involved a victim under the age of 21 – justifying an interference in
everyone’s family life, as opposed to the government taking measures to educate
people and tackle the root cause. And
whilst I agree the problem is likely to be on a larger scale than 702 cases
would suggest, it seems to me the government just deferred to the problem to
when the victim was over age 21. Indeed,
the Home Affairs Select Committee too said that it did not see “sufficient evidence to determine whether or
not raising the age of sponsorship would have a deterrent effect on forced
marriage” urging the government to commission further research – which the
Home Office did not in fact do.
As
well as increasing the age to 21, the HO indicated it would also, to tackle
forced marriages, “require those seeking spouse visas to enter into
an agreement to learn English as part of the visa application process and, once
they have arrived in the UK, to show that they have fulfilled this commitment.
We will set a medium-term goal of introducing a pre-entry English test for marriage
visa applicants.” (Hello
Bibi/Chapti!)
The
case against the HO was brought by a British-Chilean couple, Quila, caught by the
age requirement even though the Home Office accepted their marriage was
genuine, with no coercion i.e. HO agreed the couple did not belong to the group
that the age 21 requirement was intended to target, yet refused to grant the
spouse visa. It is actually quite lucky that the couple did not wait till they
were both aged 21, as otherwise they’d have likely been caught by the financial
requirement!
Whilst
this case was going on, the Quila relocated to Chile – the British citizen
deferred her university education - and then eventually to Ireland where they
exercised their EU treaty rights.
The
Quila barrister submitted that discouraging forced marriages is a legitimate
objective justifying interference with Article 8, but to be rational and
proportional, there must be a mechanism that requires the SSHD to exempt from
the operation of the rule those marriages which are not in fact forced. Given these rules inevitably impact on people
who are not parties to forced marriages, the policy was irrational.
Statistics
indicate in 2006, 7% of spouses granted leave to enter were aged between 18 and
20, and 2.5% of all grants for leave to remain as a spouse was in this age
group. In 2007, these figures were 2.6%
and 2.6% respectively.
The
HO barrister on the other hand indicated SSHD was not bound by the conclusions
of the Home Affairs Select Committee, and that given a couple of other European
countries had raised their age requirement to 21 (Netherlands) and 24 (Denmark),
this indicated the policy was rational - that all the others haven’t doesn’t
seem to mean anything!
The
High Court judge effectively deemed the SSHD’s policy not irrational but did
however grant permission for appeal.
The
lead judge Justice Sedley indicated at §4 the rule was
impossible to justify in light of the “arbitrary
and disruptive impact on the lives of a large number of innocent young
people…at least where one is a UK citizen”
The
Quila lawyer this time was joined by one for another appellant, Bibi, a Pakistani
citizen who was separated from her British husband, again because of the age
requirement. Once again, in both cases,
the SSHD accepted that both marriages were entered into without any force on
any party, and that the rule served to force British citizens into exile, or
living apart from their partner.
The
lawyers for the appellants put forward that the rule was
i)
Irrational
as it did not stop forced marriages and had unnecessary consequences
ii)
A
disproportionate interference with family life and right to marry; it impacted
a large number of genuine couples without any appreciable impact on the problem
of forced marriages
iii)
Discriminatory
as the SSHD had in April 2010 amended the rules to make an illogical exception
for serving members of HM Forces
iv)
An
abuse of immigration control as the objective to prevent forced marriages did not
have much to do with immigration.
The
judge acknowledged the impact of these rules was different where the sponsor
was a British citizen rather than a person who was here temporarily, with no
right of abode. The judge at §47-49 suggests that it is not
acceptable for a refusal to be simply justified by SSHD’s assertion that the
couple could live together elsewhere in the world. §51- 67 provide an interesting insight into
the judge’s thoughts, essentially as per the following:
- Not irrational for HO to believe that increasing the age to 21 may impact on incidence of forced marriages.
- Rules effectively subject all young couples to being under suspicion of a forced marriage, although a virtue of rigidity of the rule was that it prevented further coercion.
- Rigidity of the rules however was a problem in light of the Home Office ability to waive the rule in certain situations e.g. when the wife is pregnant, which may well be the case in forced marriage, which may thus escape the ban on under-21s anyway, and the exception made in favour of members of the armed forces where the incidence of forced marriage may not necessarily be any less prevalent.
- Both the cases in front fell outside the ‘mischief’ (i.e. forced marriages) at which this rule was directed
- Only a small proportion of all marriages impacted by the increase to age 21 are likely to be forced marriages.
- Proportionality not gauged by headcount with critical question being whether a blanket rule invading fundamental rights of innocent people can be justified by protection of a smaller and vulnerable group.
- Discrimination as a consequence of the rule was set aside; the issue of armed forces was mentioned already and though the rules impact those of south Asian origin more, the rules did not single out this group.
The judge did not strike down the
rule as a whole, as this case only involved British citizens; what the impact
on couples where neither party was a British citizen was not considered by the
court and hence for the Home Office to decide the policy on, not the court.
Justice Pitchford agreed with
Justice Sedley; refusal of leave on grounds of age alone represented a
disproportionate interference with a fundamental right. Interestingly for folks exercising EU treaty
rights, this judge was perplexed that a British citizen could lawfully live
with her spouse in Ireland, but not the UK.
Justice Green also concurred with
the conclusion of the other two judges, but for different reasons. Essentially, he thought applying this rule to
the British-Chilean couple was irrational and unreasonable. He thought application of this rule was a
classic example of the tail wagging the dog, with considerable consequences for
the British born sponsor [deferment of tertiary education, leaving her British family,
and exile form the country of her nationality in which she has the right of
abode.] As there was no information from
distinguishing the Bibi couple from this one, that appeal too should be
allowed.
In
the Supreme Court – October 2011 (justice does not come quickly!)
Set
out that though Denmark had raised the minimum age of sponsor and applicant to
age 24, research did not confirm this had reduced the incidence of forced
marriages; rather, the result had been negative aspirations in young people
whose marriages were not forced, and socially alienating them.
SSHD
was found to have failed to demonstrate that the increase to age 21 was
supported by robust evidence of any substantial deterrent effect of the
amendment upon forced marriages. i.e. the number of forced marriages deterred
by this rule was debatable, whilst the number of unforced marriages was far
greater, thereby impinging on article 8 rights.
Further,
case law indicated that family life in the case of a married couple normally
comprises cohabitation. That as Lady Hale puts it, “Absent the immigration
dimension, there can be no doubt that forcing a married couple to choose either
to live separately for some years or to suspend their plans to live in one
place and go to live where neither of them wishes to live…“colossal
interference” with their right to respect for family life”. Because the rise to age 21 was not to do with
immigration control, using the right to control immigration could not be relied
upon.
Additionally,
the rule may well result in substitution of forced marriages with a resident rather
than foreigner, as it had no impact on forced marriages within the UK or even
the EU, or do more harm than good where a British victim is forced to go live abroad
until being able to sponsor the partner.
The increase in age to 21 was therefore struck down as unlawful.
Lord
Brown was the only one of the five judges who dissented, and upheld the rule,
stating that the rules did allow an exception for pregnant women and perhaps
those cases where children were involved.
He apparently is not yet familiar with the thousands of cases involving
children impacting by the financial requirement in the MM case!
It
will be interesting to see which judges are appointed to the MM case, given
their views on the right to marry and cohabit, and my view that the imposition of the financial requirement is effectively an attempt by the HO to get Quila through the back door, as those under the age of 21 are unlikely to be earning over £18,600 or have oodles of cash in the bank.
