High court battle against the minimum age requirement for spousal visas is lost

In the case of Quila v Secretary of State for the Home Department [2009] EWHC 3189, the Court determined that the Home Office were correct in refusing a spousal visa for the British wife’s husband, a national of Chile. The Briton aged 18 and her husband aged 19, fell short of the minimum age requirement that was introduced by the UK Border Agency for spousal visas in November 2008.The New Requirement was incorporated into the Immigration Rules ( HC 395)  at paragraph 277 to read as follows:-

"Nothing in these Rules shall be construed as permitting a person to be granted entry clearance, leave to enter, leave to remain or variation of leave as a spouse or civil partner of another if either the applicant or sponsor will be aged under 21 on the date of arrival in the UK or (as the case may be) on the date on which the leave to remain or variation of leave would be granted."

The reasoning behind the requirement is that it is intended to circumvent forced marriages. The couple challenged the decision by taking judicial review action at the High Court contesting that their human rights had been violated and arguing a breach of article 8 of the European Convention on Human Rights. Article 8 provides a right to a private and family life.

The couple’s lawyer argued that the Home Office’s refusal to make exceptions to the age requirement, which came into force five days after the couple married, was ‘irrational and unreasonable’. It was argued that, in the circumstances, it was clear that the marriage was not a forced marriage and that the couple was in a genuine relationship. The British spouse argued that she was due to start University and that if her husband is removed back to Chile, she would either be forced to abandon her education or be separated from him.

Nicola Smith, a Deputy Director of Immigration Policy and Head of the Permanent Migration Team at the UK Border Agency commented on forced marriages as follows:

“The majority of cases of forced marriage that are reported to the FMU involve South Asian families, which is partly a reflection of the fact that there is a large South Asian population in the UK. However, it is clear that it is not solely a South Asian problem as the FMU is dealing with more cases from the Middle East, Europe and Africa. (So far this year the country breakdown of FMU cases is as follows: Pakistan (59%), Bangladesh (10%), India (8%), Yemen, Iraq, Turkey, Somalia all (1%).”

She continued to state that forced marriages are a breach of international human rights including the right to marry and the right to personal liberty and security.

The couple’s lawyer argued that the Home Office decision was a disproportionate interference with their right to a family life for the purposes of Article 8 (1). He argued that it was disproportional on the basis that the parties affected by the age requirement were not in fact, in a forced marriage meaning that, the Home Office should have granted the husband leave to remain outside the rules in order to respect those rights. The Court did not accept this argument and found no breach disproportionate breach of Article 8.

The decision is susceptible to challenge and may be appealed against. We will endeavour to provide all updates on our website in this respect.

8^th December 2009