In the case of Quila & Anor v Secretary of State for the Home Department [2010] EWCA Civ 1482 (21 December 2010), the Courts considered at length, the ban contained in paragraph 277 of the immigration rules on the entry of foreign spouses aged between 18 and 21 and, whether this ban was a lawful way in which to deal with the issue of forced marriages.
Paragraph 277 of the immigration rules were amended with effect from 27th November 2008 increasing the age limit for marriage from 18 years to 21 years. This applied both to the sponsor in the UK and the foreign applicant.
From 6th April 2010, the rules were amended to state ‘aged under 21’ (or aged under 18 if a serving member of the HM forces). The amendment suggested that the policy was capable of a waiver. The SSHD (Secretary of State for the Home De0prtment) clarified that ‘clear exceptional compassionate circumstances not previous considered could warrant the exercise of discretion outside the rules.
The rationale behind the increased age limit was to circumvent forced marriages which often involved rape of domestic violence. Figures showed that a substantial amount of forced marriages occurred between the ages of 18 to 21 years of age. The SSHD therefore argued that the evidence suggested that if the age limit was increased, forced marriages could be prevented. The statistics were provided by the Forced Marriage Unit (FMU).
Counsel for the appellants argued that the FMU found no more than 4% of those who applied for entry clearance visas were deemed to be forced marriages. As a result, using the same statistics, roughly 96% who now apply would be disadvantaged by the ban (the figures in question were those of 2007, one year prior to the ban being introduced).
The Judges in this case commented that a substantial number of bona fide couples would be kept apart as a result of this ban. Whilst the SSHD accepted this, it was argued that the measure was proportionate to the aim. The appellants’ counsels’ counter argued that the measures would not prevent forced marriages and indeed, if they did, this would only be for a temporary period. Instead, forced marriages will only be deferred until the age of 21.
Immigration Rule 277
The court considered the validity of the rule. The appellants’ argued that the rule was
a) Irrational
b) Disproportionate
c) Discriminatory
Ground 1 Irrationality
The conclusion on this basis was that, the rule had little to do with preventing forced marriages simply by reference to age. It could arguably prevent the incidence of forced marriage by excluding an age group of people identified to be subject to forced marriages.
Ground 2 Proportionality
Proportionality at common law and under the Convention were considered and ultimately, the court agreed that rule 277 is in direct conflict with both common law and the Convention. The right to a family life is a fundamental right. The SSHD argued that rule 277 does not prevent the couple from marrying or from living overseas until they attain the relevant age, it merely prevents them from living in the UK. However, the point of marriage is the right to live together thereafter and any reason justifying the separation of a couple needs to be much stronger than the reasons presented by the SSHD.
Consequently, the SSHD’s measure to prevent forced marriages was arbitrary and excessive. At paragraph 62, the court provided as follows
“The critical question was why the protection of the vulnerable justified a blanket rule which invaded the fundamental rights of a far greater number of innocent people. This was apparently not addressed”.
Ground 3 Discrimination
It was argued that the rule was contrary to the prohibition of discrimination of Article 14. This referred to the amended exception for those members of the HM forces (for which the age limit is 18). The question of discrimination was already considered in the proportionality arguments and the courts did not rule further on this issue.
Conclusion
In conclusion, it was held that the ban imposed by rule 277 was unlawful. The court commented that whether it should be limited or dropped altogether was a matter for the SSHD.
In the cases of the present appellants, it was no doubt that a family life in accordance with article 8 had been established and the SSHD, by application of rule 277, had interfered with this right.
The appeals were subsequently allowed.
21 December 2010
RK ("purpose" of family visit) Bangladesh [2006] UKAIT 00045 (24 April 2006)
The Asylum and Immigration Tribunal have refused the appeal of a Bangladesh citizen seeking permission to visit family in the UK.
The appellant and her husband sought entry clearance to come to the UK to visit their nephew’s son who was having brain surgery. The appellant was related to the child through marriage, her husband being the uncle of the boy’s mother. The boy was said to have visited the couple in Bangladesh on four occasions and had a good relationship with them. The appellant and her husband stated on their sponsorship declarations that they would be staying with the boy’s parents (the niece and husband of the appellant’s husband). The purpose of the visit was to visit the boy as he was having surgery and also to help the sponsors with the care of their other children, especially as the grandmother of the child (the appellant’s sister-in-law) was unwell.
In the first instance the application was refused on several grounds. Firstly, the appellants were not the grandparents of the child but the grandmother’s brother and sister-in-law. Secondly, it was considered that their circumstances in Bangladesh were quite modest and thirdly, the father of the boy they intended to visit had lost his job and was in receipt of public funds.
The couple appealed this decision. There was no argument from the Entry Clearance Office about the decision allowing the appeal of the husband. However, it was argued that the wife did not have a right of appeal because she is not a family member of the sponsors for the purposes of the Immigration Appeals (Family Visitor) Regulations 2003. Therefore, the Entry Clearance Office sought reconsideration of the appeal.
The definition of “member of the applicant’s family” in paragraph 2 of the 2003 Regulations is any of the following:
(a) the applicant's spouse, father, mother, son, daughter, grandfather, grandmother, grandson, granddaughter, brother, sister, uncle, aunt, nephew, niece or first cousin;
(b) the father, mother, brother or sister of the applicant's spouse;
(c) the spouse of the applicant's son or daughter;
(d) the applicant's stepfather, stepmother, stepson, stepdaughter, stepbrother or stepsister; or
(e) a person with whom the applicant has lived as a member of an unmarried couple for at least two of the three years before the day on which his application for entry clearance was made.
The appellant argued that there was an intention to visit her sister-in-law. There was reference made to the sister-in-law in the grounds for appeal, they were a close family and she lived close to the named sponsors.
The respondent argued that the only reference made to the sister-in-law had been when the appellant was asked if she had close friends or family in the UK. She was not named as a sponsor of the person whom the couple intended to visit. The clear intention in the declarations was to visit the nephew.
The Senior Immigration Judge determined that there had been a material error in law by the Immigration Judge in allowing the appeal of the appellant. She did not have the jurisdiction to consider the appeal as the appellant did not come within the family visit regulations. The child which the appellant declared she intended to visit was the son of her husband’s sister’s daughter and clearly therefore did not fall within the categories of family members listed in the 2003 Regulations. The grant of appeal was therefore overturned by the Tribunal.