House of Lords - right to marry - government defeated again

On 30 July 2008 the House of Lords dismissed the Secretary of State’s appeal against the Court of Appeal’s judgment in R (on the application of Baiai and others) v Secretary of State for the Home Department  [2008] UKHL.  Mr Baiai and the other Claimants had successfully applied for judicial review of the Secretary of State’s decisions to refuse to issue them with a Certificate of Approval, enabling them to get married in the United Kingdom.  As was reported on this site at the time the Court of Appeal in May of 2007 dismissed the Secretary of State’s appeal against their successful applications for judicial review.  

Article 12 of the European Convention on Human Rights (the “ECHR’) provides:

 “Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right”

This case concerns the extent to which, if any, this right can be restricted by the Convention’s Member States.  

Section 19 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 created a regime under which if two people wished to get married and one or both of them was subject to immigration control – they would not be able to get their marriage solemnised and then registered by a superintendent registrar unless they possessed a “Certificate of Approval” of their prospective marriage issued by the Secretary of State.  Section 19 (3) (b) states:

 “(3) The superintendent registrar shall not enter in the marriage notice book notice of a marriage to which this section applies unless satisfied, by the provision of specified evidence, that the party subject to immigration control-

…

(b) has the written permission of the Secretary of State to marry in the United Kingdom”

 The process whereby such certificates should be applied for was set out in the Immigration (Procedure for Marriage) Regulations 2005.  

Guidance was issued to caseworkers within what was then the Immigration and Nationality Directorate (and which is now the United Kingdom Border Agency) indicating how the Certificate of Approval scheme was to be operated. Under the guidance – the Immigration Directorate’s Instructions or “IDI”s - permission to marry would be granted if the applicant had a valid right to enter or remain in the UK for more than six months, and had at least three months of that period remaining at the time of the application. Outside of that category, permission would be refused unless there were especially compassionate features.

The Secretary of State brought in this regime because people who do not have leave to enter or to remain in the UK and who get married to UK nationals (or to European Economic Area nationals living in the UK) are - by both the immigration rules and by Article 8 of the ECHR - to some extent protected from being removed.  

Before the House of Lords the Secretary of State argued that Article 12 of the ECHR was not an absolute right and that it could be restricted for reasons similar to those whereby the right to respect for a persons private and family life which is protected by Article 8 (1) could be restricted under Article 8 (2).   Accordingly the Secretary of State stated that the question for the House was whether any restriction on the right to marry was proportionate to the interests of immigration control.  The Secretary of State contended that the scheme was not disproportionate to the interests of immigration control.  

The House of Lords accepted that the right protected by Article 12 was not an absolute right.  It was clear from the authorities however that the right was a right to enter a genuine marriage, and not “the right to secure an adventitious advantage by going through a form of marriage for ulterior reasons”.

This was why national authorities could properly impose conditions of the rights to marry of people who were subject to immigration control – provided the purpose of those conditions was to check that the proposed marriage was genuine and to prevent the marriage if it was not.  

The next question was whether the scheme operated by the Secretary of State did have this purpose.  The House of Lords pointed out that the question of whether an applicant for a certificate of approval had at least 3 months left of a valid grant of leave to enter or remain of 6 months or more – which was the only information required by the IDIs – had nothing whatever to do with the question of whether the proposed marriage was genuine or not.  This – according to Lord Bingham – was “the vice of the scheme”.   Regardless of the sincerity or otherwise of their intentions the scheme prohibited those who did not have the necessary leave to enter or remain from getting married.   The scheme was therefore “a disproportionate interference with exercise of the right to marry”

At the beginning of the litigation in these cases Mr Justice Silber had found that the section 19 regime was incompatible with Article 12 and (because the restrictions in section 19 (3) (b) did not apply to people who got married in Church of England (Anglican) ceremonies) also with Article 14, which prevents discrimination.  The Secretary of State assured the Court of Appeal that this discrimination would be put right by amendments to the statute.  However by the time of the Secretary of State’s appeal to the House of Lords the declaration of incompatibility still covered the whole of the scheme.  

Because in his view there was nothing inherently contrary to Article 12 in either the section 19 regime or the Immigration (Procedure for Marriage) Regulations 2005 he stated that the declaration of incompatibility should be set aside – except in so far as the discrimination in favour of Church of England marriages was concerned.  

Lord Bingham went on to say that section 19 (3) (b) of the 2004 Act should be read as meaning:

“has the written permission of the Secretary of State to marry in the United Kingdom, such permission is 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”

Lords Rodger, Brown and Neuberger agreed with Lord Bingham’s opinion and also with Baroness Hale’s, in which she sharply criticised the government’s attempts to deny people subject to immigration control the right to marry if they wished to do so.  She referred to attempts by other nations to restrict the right to marry in order to prevent marriages between people of different races, including the sinister measures taken by the Nazi regime in Germany and those which existed in some states of the United States until the Supreme Court’s decision in Loving et ux. v Virginia 388 US 1 (1967).  She pointed out that:

“Denying to members of minority groups the right to establish formal legal relationships with the partners of their choice is one way of setting them apart from society, denying that they are free and equal in dignity and rights”

Following its unsuccessful appeal in the House of Lords the UKBA has amended its information leaflet - which can be found on this page of the UKBA website.  Anyone who is subject to immigration control and who wishes to marry a UK or EEA national should seek legal advice.  Gherson is ideally placed to provide such advice, and to assist in any necessary approach to the UKBA.