Permission to Marry Requirements Do Not Breach Human Rights When the Applicant is Not Lawfully in the UK
The High Court (Silber J) has found that section 19 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 is compatible with articles 12 and 14 of the European Convention of Human Rights when the applicant is not lawfully in the UK.
The ruling is the third judgment in the case of R on the applications of Mahmoud Baiai & Izabela Trcinska and- The Secretary of State for the Home Department [2006] EWHC 1454 (see article Permission to Marry Provisions not Compatible with the Human Rights Act of 11/4/06).
Section 19 requires persons who are subject to immigration control to obtain permission from the Home Office to marry. If permission is granted the person is issued with a Certificate of Approval (COA). However, if the couple are to marry in an Anglican Church (Church of England), a COA is not required.
In the earlier judgments in the case, the court ruled that section 19 was not compatible with article 14 (non-discrimination) of the ECHR as it discriminated against persons of religions other than Anglican.
However, in the newest judgment, the court has ruled that section 19 does not breach article 12 (right to marry) as not allowing persons who are not legally present in the UK to gain rights to remain by marriage is proportionate to immigration control.
As regards the article 14 claim (non-discrimination), the judge found that the section did not discriminate on the grounds of religion, as there is substantial evidence that there were no or few sham marriages in the Anglican Church whereas the evidence shows that there are many sham marriages in registry offices (where the applicants intended to marry). Because of this, the requirement to obtain a COA was justified.
However, the judge did not address the situation where the applicant did not wish to marry in a registry office but in another church or religion, be in Jewish, Muslim or another Christian faith etc. The judge seems to suggest that section 19 is compatible with article 14 in all cases where the applicant is not in the UK lawfully. This proposition does not sit well with the previous judgment that to distinguish between the various religions is discriminatory and not compatible with article 14. The judgment ignores the fact that a person here unlawfully will not be required to obtain a COA if he / she marries in the Anglican Church whereas members of all other religions will. Based on the previous judgments in the case, that distinction in itself appears to be discriminatory.
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