Under the scheme certain categories of foreign nationals who wished to marry in the UK were required to obtain from the Secretary of State from the Home Dept a certificate of approval for which they had to pay a fee. Those who married in the Church of England were not subject to such a procedure and did not have to pay a fee.
The certificate of approval scheme made no attempt to check whether the individuals concerned were in fact entering into a marriage of convenience although the stated purpose of the scheme was to stop ‘marriages of convenience’ where the sole purpose of the marriage was to enable a party to gain rights of residence in the UK.
The issue had been dealt with in the domestic courts in Baiai, Bigoku, Agolli and Tilki v Secretary of State [2008] UKHL 53 [2009] 1 AC 287 where the House of Lords had upheld a declaration of incompatibility on discrimination and made similar conclusions on article 12. However, the Government did not scrap the scheme and O’Donoghue proceeded to raise the issue in Strasbourg.
The government has belatedly said that it proposes get rid of the scheme. Some of those who were the victims of it may be entitled to compensation.
Manjit S. Gill QC was instructed by the Equality and Human Rights Commission, the intervener in O’Donoghue. He also acted as the lead counsel for the claimants in Baiai, Bigoku, Agolli and Tilki v Secretary of State.