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07 DEC 2009

IMMIGRATION/MARRIAGE: Quila and Aguilar v Secretary of State for the Home Department [2009] EWHC 3189 (Admin)

(Queen's Bench, Administrative Court; Burnett J; 7 December 2009)

The Chilean husband, aged 18, and the British wife, aged 17, challenged the decision to refuse the husband leave to remain as a spouse on the basis of the immigration policy relating to marriages of those aged under 18. The couple also challenged the more recent change to the policy, which increased the relevant age from 18 to 21, introduced as part of a package of measures designed to prevent forced marriages. It was accepted that the couple's marriage was not a forced marriage. The application of the policy in this case meant that the British wife would either have to live in a different country to the man until she was 21, or would have to give up her English university place in order to move to Chile.

It had not been irrational to increase the age limit, and it was not irrational to apply the policy without investigating the individual circumstances of every application with a view to forming a judgment on the question whether the marriage was or was not forced. The exception to the policy, allowing leave to remain to be granted to spouses under 21 in compelling compassionate circumstances, would be applied in any case where on the facts a refusal to allow the foreign spouse leave to enter or remain would involve a violation of European Convention on Human Rights, Art 8. It was not the case that a decision that might lead to separation necessarily interfered with family life. There had been no breach of Art 8 in this case.

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