UK scheme to police sham marriages slammed by Human Rights court

O’Donoghue and Others v. the United Kingdom(application no. 34848/07):

The government’s system for preventing sham marriages as an entry ploy for immigrants breached the right to marry and was discriminatory – read judgment.

By the time this case was lodged the Certificate of Approval Scheme had been much diluted by a series of amendments, but even so the Court found itself to be “gravely concerned” with the policy.  This, along with the surprisingly lenient approach to the applicants’ failure to exhaust local remedies, suggests that the Court was anxious to address what it sees as endemic problems in the UK’s border control policy.  If states want to use impediments to marriage as an entry deterrent, it says, then they must face being rapped with the Article 12 stick.

The main applicant in this case was a Nigerian national who arrived in Northern Ireland in 2004 and claimed asylum in 2006.   He and Ms Donoghue met in November 2004 and in May 2006 they agreed to marry. However, he was unable to qualify under the “first version” of the Certificate of Approval Scheme  in operation at the time,  as a person subject to immigration control. He had to have either entry clearance expressly granted for the purpose of enabling him to marry or a certificate of approval granted under Section 19 of the Asylum and Immigration Act 2004, neither of which he could obtain, along with the application fee of £295. That year the scheme was successfully challenged in the courts for being incompatible with the Convention, largely because it did not apply to those couples seeking to marry in the Church of England.

In response to these rulings a “second version”  was introduced, under which those who had insufficient leave to enter or remain could be asked to submit further information in support of their applications to satisfy the Home Office that the proposed marriage was genuine. This second version did not however alter the Church of England position. In any event, the applicants still could not marry, because the first applicant had no leave to remain in the UK at the time, and thus still did not qualify for a certificate of approval.

In 2007 a “third version” was introduced which extended the possibility of qualifying for a certificate of approval to those who were awaiting the outcome of an application for leave to remain. Although the applicant qualified for a certificate from then on, he still could not afford the application fee.

The couple did finally obtain a certificate of approval on 8 July 2008 after friends helped them to pay the fee. They married on 18 October 2008.

The applicants complained that the scheme breached their right to marry under Article 12, alone and in conjunction with Article 14. They also submitted that it breached their right to freedom of religion (Article 9) and  right to respect for private and family life (Article 8), again  alone and in conjunction with Article 14. Finally, invoking Article 13, they contended that they had been deprived of a remedy before national courts. The application was lodged with the European Court of Human Rights on 31 July 2007.

Held:

Complaints under Article 12 and Article 14 upheld and pecuniary as well as non-pecuniary damages granted under Article 41 by way of “just satisfaction”.

Article 12

Contracting States do not necessarily violate Article 12 by imposing reasonable conditions – to establish if a proposed marriage was one of convenience – on a foreign national’s ability to marry. However, the Court had a number of “grave concerns” about the scheme operating in the UK.  The only relevant requirement for the certification was the genuineness of the proposed match. The Court did not accept that this requirement yet had the foreground in the Scheme’s criteria.  As for the fee itself – the technical complaint in this litigation – the Court found that it was fixed at a level which was capable of impairing the essence of the right to marry, especially given that many of those subject to immigration control would either be unable to work in the UK.

The argument under Article 14 in conjunction with Articles 9 and 12, was also upheld. Argument under Article 13 rejected.

Comment

As the judgment notes, the abolition of this Scheme is on the cards, subject to Parliamentary time and attention. This does not mean that the Court was taking an entirely academic point by adjudicating upon the applicants’ argument, since individual victims must still be compensated even if the offending law has been removed. However the Court’s enthusiasm for pressing ahead with this case arguably overrode principle in two respects.

One is the Court’s rejection of the government’s inadmissibility argument. As the Baiai litigation shows, it was perfectly possible to mount a challenge to the scheme in the domestic courts.  The government pointed out that the fee level – the focus of the applicants’ case – was the product of secondary legislation and it would therefore have been open to the applicants to attack it via judicial review before the national courts. The Court found that  at the time the applicants introduced their complaints in Strasbourg, they could not “be reproached for not having mounted a separate challenge on the fees issue alone.” , since Baiai was still pendin.   But reproach is not the point; exhaustion of local remedies is one of the rules of admissibility under Article 35 the Convention and it should not be open to complainants to leapfrog national remedies just because they think their chances of success will be higher in Strasbourg. And the fact that the applicants’ complaint under Article 13 was rejected as manifestly ill-founded suggests that the Court felt that there had been a local remedy available – it said itself that Baiai “clearly demonstrates that effective domestic remedies were available to challenge the incompatibility of the Certificate of Approval scheme”.

The other point concerns the Court’s approach to the scheme itself. This complaint was upheld because in the particular circumstances of the case the first and second applicants would not have been able to marry without a whip-round for the fee. However the fee requirement had been suspended  from 9 April 2009, and a system of refunds was set up to recompense those who had been required to pay. The Court found that this system of refunding fees to needy applicants “was not an effective means of removing any breach of Article 12 as the very requirement to pay a fee acted as a powerful disincentive to marriage”. But this is a somewhat blinkered – if not actually disingenous – approach, given that the welfare schemes of many signatory states to the Convention – for example healthcare in France – are based on the “pay first, claim later” approach, without apparent offence to citizens’ rights. So it is hard to see why, in paragraph 88 – 90, the Court saw fit to make its broad pronouncements about this particular policy.

It no doubt was the case, when the first scheme was in operation, that none of the conditions it imposed  had any relevance to the genuineness of the proposed marriage .  The second version of the scheme provided that persons with insufficient leave could be required to submit information concerning the genuineness of their relationship, while the third version of the scheme extended this requirement to applicants with no valid leave to remain. By the time the Court came to consider the issue, the third version was in operation, under which people with sufficient leave to remain are waved though without any investigation as to the genuineness of the marriage, whereas those who are in a category raising “immigration advantage” concerns are (arguably legitimately) investigated, and no fee is charged.  It is not immediately obvious why applicants with sufficient leave, who qualify under the scheme, should have any complaints about it – so whence the “grave concerns”?

Naturally the government was somewhat on the back foot in this litigation in that it had failed to address the discriminatory business involving the church of England.  Following its decision to respond to the Baiai rulings by including the Church of England in the procedure, negotiations had clearly failed and it was decided that it was ultimately easier to ditch the scheme altogether.

Finally, a word about the pilot judgment procedure, on which submissions were invited in this case (although ultimately rejected).  The procedure was created in 2004 in response to the accumulation of violations that have the same root cause, such as excessive length of legal proceedings, or the non-execution of compensatory domestic judgments. The Court’s docket has been unable absorb the accumulation of complaints about these wide-scale violations and to address this problem something akin to the group action was developed, starting with the cases of Broniowski v Poland and Burdov (No. 2) v Russia (failure to compensate following binding domestic judgments). The selection of cases for this procedure is of necessity determined by a mixture of practical, political and legal considerations; and the fact that the Court canvassed the possibility of running the instant case along the same lines shows that it was not motivated by legal principles alone.

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