Court of Appeal on Certificates of Approval for marriage

Updated by Gherson and Co on Wednesday 23 May 2007. | | | |

Stop press: see subsequent Certificate of Approval articles in the 'Family Immigration'  section of Gherson and Co. articles for details of further information issued by the Home Office.

In February 2005 the UK Home Office introduced a controversial scheme under which it was necessary for  some couples to obtain a Certificate of Approval (CoA) from the Home Secretary before marrying or entering into a civil partnership in the UK.  Under this scheme, the requirement to obtain a Certificate of Approval applied when at least one partner was not British or settled in the UK and not a national of a member State of the European Union (EU).

The scheme was challenged in a group of cases known as Baiai (the name of one of the people appealing in the case, [2007] EWCA Civ 478). On 23 May 2007 the UK Court of Appeal gave its judgment in this case. The UK Home Office lost.

The challenge in Baiai relied on article 12 of the European Convention on Human Rights (ECHR), the right to marry and found a family.  The Court of Appeal held that the scheme was unlawful because it was inconsistent with article 12, saying:

'...the Secretary of State can only interfere with the exercise of article 12 rights in cases that involve, or very likely involve, sham marriages entered into with the object of improving the immigration status of one of the parties. To be proportionate, a scheme to achieve that end must either properly investigate individual cases, or at least show that it has come close to isolating cases that very likely fall into the target category. It must also show that the marriages targeted do indeed make substantial inroads into the enforcement of immigration control. …the scheme in issue in this case does not pass that test.’

Mr Baiai had no lawful leave to be in the UK.  The Court held that preventing him from marrying was still unlawful, saying:

‘There may well be good grounds for saying that when a person should not be in this country at all, even on a temporary basis, it would be reasonable and proportionate to prevent him from using the access to article 12 that that physical presence gives him in order to improve his immigration position. But that is not the basis on which the Secretary of State rested his refusal of Mr Baiai's application. The only right that he claimed to interfere with Mr Baiai's intended marriage was, and had to be, based on the scheme. The objection inherent in the scheme, that it inhibits marriages on grounds of immigration status rather than by a reliable consideration of the genuineness of the marriage, applies just as much in the case of an illegal entrant such as Mr Baiai as in the case of persons with very limited permission to be here...’.

As of 23 May 2007, the Certificate of Approval scheme is unlawful. The Home Secretary may try to appeal the decision to the UK House of Lords. The UK Home Office is reported to be considering this.

There is more than way in which the House of Lords that could be involved.  The House of Lords is the name of the highest court in the UK.  It is also the name of a bigger unit, the second chamber of the UK parliament. A new proposal for immigration legislation in the UK, the UK Borders Bill, is currently before the UK parliament. It will soon be considered by the second chamber of that parliament, the House of Lords.  Given that the court in Baiai said that ‘there might be the possibility of dealing with cases such as that of Mr Baiai under differently formulated legislation’, there is a possibility that the UK government will try to make changes to the UK Borders Bill to make it unlawful for people with no lawful leave to be in the UK to marry in the UK or make other changes to address the decision of the Court of Appeal in Baiai. 

The Secretary of State’s declared purpose in setting up the Certificate of Approval regime was to prevent marriages that did not reflect genuine relationships, but were entered into to secure an immigration advantage: the right to stay in the UK.  It went further than laws that prohibit people from deriving an immigration advantage from a marriage or civil partnership; it prevented them from entering into the marriage or civil partnership in the first place. Where laws prevent a couple from entering into a genuine marriage or civil partnership, this has implications for their religious, cultural and social life that range far beyond immigration and thus engage article 12 of the European Convention on Rights.

The Court of Appeal held that the right to marry is an important and fundamental right.  It is not absolute: it recognises and supports national laws that ensure that marriages are proper. Nor does it confer a right to marry in any particular country, in this case the UK rather than a country outside the European Economic Area (EEA).  

The Court of Appeal did not mention civil partnerships. Article 12 of the ECHR specifically protects the right to marry and makes no mention of civil partnerships. To date the Home Office has never applied separate regimes to marriages and civil partnerships and when the High Court, the court below the Court of Appeal, first decided against it in Baiai, it .changed the regime for Certificates of Approval for marriages and civil partnerships.

It had also been argued in the case that the Certificate of Approval regime was contrary to article 14 of the ECHR which prohibits discrimination in pthe application of any of the articles of the ECHR.  Marriages in the Anglican Church (the Church of England) were exempt from the Certificate of Approval regime, unlike marriages performed according to the rites of other faiths, and those with no religious element at all.  This, it was argued in Baiai, constituted discrimination on the grounds of religion. While agreeing that the exemption made the scheme discriminatory against those who married other than in an Anglican church, the Court of Appeal held that this was ‘essentially a footnote to the scheme as a whole’, a scheme they found, as a whole, to be unlawful.  If the Home Secretary decides to introduce a new regime, it may be that the exemption for marriages in the Anglican Church would not be a part of it.

 People who have been refused a Certificate of Approval in the past, and/or have been unable to marry or form a civil partnership or otherwise disadvantaged because of this requirement, will be greatly encouraged by the judgment and should consider taking legal advice about their current situation. 

Alison Harvey, Gherson and Co.