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23 MAY 2007

MARRIAGE: R (Baiai) v Secretary of State for the Home Department; R (Bigoku) v Same [2007] EWCA Civ 478

(Court of Appeal; Waller, Buxton and Lloyd LJJ; 23 May 2007)

The Secretary of State's statutory scheme required that people subject to immigration controls or who had entered the UK illegally, who wished to marry other than according to the rites of the Anglican Church, must first obtain permission from the Home Office. The claimants complained that the scheme interfered with their right to marry under the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, Art 12, and, because of the exemption for Anglican marriages, discriminated against them contrary to Art 14.

The statutory scheme contravened Art 12 on the right to marry and Art 14 on the right not to be discriminated against for reasons of nationality or religion. The Secretary of State could only interfere with the exercise of Art 12 rights in cases that involved, or very likely involved, sham marriages entered into with the object of improving the immigration status of one of the parties. To be proportionate, a scheme to achieve that end would have to either properly investigate individual cases or at least show that it had come close to isolating cases that very likely fell into the target category, and must also show that marriages targeted did indeed make substantial inroads into the enforcement of immigration control. The scheme was not proportionate in that it inhibited marriages on grounds of immigration status rather than by reliable consideration of the genuineness of the marriage. The scheme unreasonably failed to pay attention to the circumstances of individual cases, and affected the Art 12 rights of substantially many more people than would be necessary to achieve the legislative purpose of preventing sham marriages.

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