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Family Law

The leading authority on all aspects of family law

12 OCT 2011

Supreme Court overturns ban on young non-EU spouses

Supreme CourtThe Supreme Court has overturned a government immigration rule that bans non-EU foreign spouses under the age of 21 settling in the UK.

On 27 November 2008 a change to the Immigration Rules meant spouses or civil partners under the age of 21 were no longer permitted to settle in the UK.  The rules were intended to deter and prevent forced marriages, but many legitimate marriages have been caught by the rules resulting in spouses being forced to choose to either live abroad together or live separately.

One spouse who was prevented joining his wife in the UK was Aguilar Quila, a Chilean national, who entered into a fully consensual marriage with Ms Jeffery, a British citizen. Mr Quila applied for a marriage visa before the amendment took effect, but his application was refused as his wife was only 17 and a sponsoring spouse had to be 18. By the time that Ms Jeffrey had turned 18 the amendment was in force and the Home Office refused to waive it. Consequently, Mr Quila and his wife were forced to leave the UK initially to live in Chile and his wife had to relinquish a place to study languages at Royal Holloway, University of London, although they subsequently moved to Ireland.

The Respondents' claims for judicial review of the decisions were rejected in the High Court.  The Respondents  successfully  appealed  to  the  Court  of  Appeal,  which  declared  that  the  application  of Paragraph 277 so as to refuse them marriage visas was in breach of their rights under Article 8 of the European Convention on Human Rights and Fundamental Freedoms 1950. The Secretary of State appealed to the Supreme Court.

The Supreme Court, by a 4-1 majority, dismissed the Secretary of State's appeal on the grounds that the refusal to grant marriage visas to the Respondents was an infringement of their rights under Article 8

 Giving the leading judgement, Lord Wilson said in the Supreme Court's judgement the government had not shown a good case for interfering with the right to private and family life.

"I would acknowledge that the [change in rules] is rationally connected to the objective of deterring forced marriages," he said.

"But the number of forced marriages which it deters is highly debatable.

"What seems clear is that the number of unforced marriages which it obstructs from their intended development for up to three years vastly exceeds the number of forced marriages which it deters.

"The Secretary of State has failed to exercise her judgement on this imbalance and thus failed to establish both that the measure is no more than is necessary to accomplish the objective of deterring forced marriage and that it strikes a fair balance between the rights of parties to unforced marriages and the interests of the community in preventing forced marriage.  On any view, the measure was a sledgehammer but the Secretary of State has not attempted to identify the size of the nut," Lord Wilson added.

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