Mon, 05 Dec 2011
By No5 Chambers Immigration Team
The Supreme Court’s October judgment in Quila and Bibi v Secretary of State for the Home Department  UKSC 45 (12 October 2011), in which by a majority of 4 to 1 the Court dismissed the Secretary of State’s appeals against the Court of Appeal’s judgment last year already looks like a landmark in the development of the way in which rights to respect for family life are understood.
The subject of the judgment was the 2008 amendment to the Immigration Rules relating to marriage visas - the granting of entry clearance and leave to remain in the UK to people who are married to UK citizens or to people who have indefinite leave to remain in the UK.
By the amendment in November 2008 the government changed the Immigration Rules so that no one could be granted a marriage visa unless both parties to the marriage were aged at least 21 years old. The previous age limit was 18. The reason for the change, it was said, was to prevent “forced marriages” – marriages into which a person is made to enter against his or her will for a variety of reasons. The Secretary of State published guidance at the time in which thirteen such reasons were identified, including “financial gain”, “ensuring land, property and wealth remain within the family” and most relevant for immigration purposes “assisting claims for UK residence and citizenship”.
The government’s research also showed that the victims of forced marriage were mostly aged between 13 and 29 years old. So raising the minimum age for a marriage visa would protect young people from family or other pressure until they were old enough to protect themselves.
The problem with the measure is that it also prevented those who young people who willingly entered into marriage from living together in the UK until they became old enough to apply for a marriage visa with any chance of succeeding. Such people’s rights to respect for their family life protected by Article 8 of the European Convention on Human Rights were frustrated by the change in the Immigration Rules.
This was the situation of the first Appellant Mr Quila, a Chilean national and his British wife Mrs Aguilar, who were both aged 18 at the time of the refusal of Mr Quila’s visa application. In the proceedings before the courts the Secretary of State accepted that Mr and Mrs Quila married because they were in love with each other. Similarly it was accepted that there was nothing forced about the second couple’s marriage, a young Pakistani woman married to her British husband.
The first challenge to the rule change failed in the Administrative Court in 2009, but succeeded on appeal to the Court of Appeal in 2010. The Secretary of State then appealed to the Supreme Court.
In the Supreme Court the Secretary of State relied upon the European Court of Human Rights’ judgment in Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471, in particular for the proposition that:
“The duty imposed by article 8 cannot be considered as extending to a general obligation on the part of a contracting state to respect the choice by married couples of the country of their matrimonial residence and to accept the non-national spouses for settlement in that country.”
The Secretary of State argued that since the married couples in these cases could live in, respectively, Chile or Pakistan her decision to refuse to grant the marriage visas didn’t interfere with their rights protected by Article 8. This argument has for many years been applied by the Secretary of State, particularly in cases of spouses and partners seeking to live together in the UK.
The judgment in Abdulaziz moreover was material to the now largely disregarded judgment of the Court of Appeal in R (Mahmood) v Secretary of State for the Home Department  1 W.L.R. 840, in which the Court found that people who got married in the UK having entered under a different immigration route should generally return to their home countries and make an application for entry clearance as a spouse from there.
However the Supreme Court declined to follow the judgment in Abdulaziz. It said that back in 1985 the European Court of Human Rights had explained its decision by comparing the circumstances of family members who lived in different countries and were seeking to be joined in the UK, with those of family members already living together in the country concerned, one of whom faced being removed from that country. In the first situation Article 8 could be relied upon for the positive obligation which a state (in the Abdulaziz case the UK) had to respect family life while in the second case the obligation was a negative one – i.e. not to interfere with family life.
The Supreme Court said that since 1985 this distinction between positive and negative obligations under Article 8 had almost disappeared in the cases decided by the European Court after Abdulaziz.
Since the principle in that case wasn’t applicable the only question was whether the interference caused to the huge numbers of people whose rights willingly to marry and to live together were frustrated by the change in the minimum age for marriage visas was justified by the protection the change may provide for those at risk of being forced into marriage.
For the majority of the Supreme Court it was clear that the change was in fact a “sledgehammer to crack a nut”. The Secretary of State had simply not shown that the measure would have the effect it was supposed to have, whereas it was plain that its existence would have a substantial deterrent effect on large numbers of people’s rights to respect for their family lives.