Human rights and judicial review in the past year – Part 4/4: Article 12, the right to marry

26 October 2010 by Angus McCullough KC

This post is adapted from a presentation given at the Justice Human Rights Law Conference, and will be split into four parts. Part 1 can be found here, part 2 here and part 3 here.

Today, in the final part of this series, I concentrate on recent cases involving Article 12, the right to marry and a couple of other notable cases. You can find previous posts on Article 12 here.

ARTICLE 12: Right to marry

Forced Marriages and the marriage visa age

R (Quila) v. SSHD [2009] EWHC 3189 (Admin), Burnett J

This case concerned a challenge to the raising of the minimum age (from 18 to 21) to obtain a marriage visa – or sponsor someone to obtain a marriage visa. This change was implemented as part of the Government‟s efforts to combat forced marriages. Before Burnett J, the case was argued and decided on the basis of Article 8; the young couple having married in the UK, but unable to live together in the UK after the Chilean husband‟s application for leave to remain in the UK (following expiry of his student visa) was refused. The refusal was solely on the basis of that his British wife was still 17 at the date of the visa application (so she would in fact have been too young even under the previous version of the rule). However, in the appeal before the Court of Appeal [heard on 21 and 22 October 2010 – judgment reserved]  it is to be argued – although not by the Claimant in Quila, that the Immigration Rule and policy constitutes a breach of Article 12 as well as Articles 8 and 14).

The EU Charter of Fundamental Rights

R (S) v. SSHD, Amnesty International and the AIRE Centre intervening [2010] EWHC 705 (Admin), Cranston J – read our post

At first instance, Cranston J held that the SSHD had to take into account an individual’s rights under the Charter of Fundamental Rights of the European Union, but none of those rights were directly enforceable against the SSHD, and a transfer (of the Claimant to Greece) under the Dublin Regulation could not be challenged on the basis that it was incompatible with them. An appeal to the CA was reportedly successful on the issue of the direct enforceability of the EU Charter rights, but no judgment is yet available [Correction – I am informed by the CA Office that in fact the only decision made by the CA thus far is to make a reference to the ECJ]. Clearly, the outcome of this case has the potential to broaden the range of rights available to be relied upon, based on the Charter, in domestic proceedings.

Gay rights and asylum

HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31 – read our post

The SC held that the government‟s “Anne Frank” policy of sending back gay refugees to their home countries where they feared persecution was contrary to their rights under the Refugee Convention. Strictly speaking, this was not a Human Rights case, as it was decided purely under the Refugee Convention. HJ and HT are both homosexual men and had been persecuted in their home countries – Iran and Cameroon respectively – after their sexual orientation had been discovered. The CA had dismissed the men‟s appeals on the basis that the consequences for the men would be “reasonably tolerable”. Lord Rodger (who along with the rest of the SC rejected the test of „reasonable tolerability and allowed the appeal) stated:

In short, what is protected is the applicant’s right to live freely and openly as a gay man. That involves a wide spectrum of conduct, going well beyond conduct designed to attract sexual partners and maintain relationships with them. To illustrate the point with trivial stereotypical examples from British society: just as male heterosexuals are free to enjoy themselves playing rugby, drinking beer and talking about girls with their mates, so male homosexuals are to be free to enjoy themselves going to Kylie concerts, drinking exotically coloured cocktails and talking about boys with their straight female mates. Mutatis mutandis – and in many cases the adaptations would obviously be great – the same must apply to other societies. In other words, gay men are to be as free as their straight equivalents in the society concerned to live their lives in the way that is natural to them as gay men, without the fear of persecution.

However, “simple discriminatory treatment” on grounds of sexual orientation does not give rise to protection under the Convention. Nor does the risk of family or societal disapproval, even trenchantly expressed. Nevertheless, persecution does not cease to be persecution for the purposes of the Convention because those persecuted can eliminate the harm by taking avoiding action. It remains to be seen whether the principle extends to the open expression of political opinion, the CA in TM (Zimbabwe) and others v SSHD [2010] EWCA Civ 916 having declined to decide the issue while nonetheless sketching out the field of argument (Elias LJ at [31-42]).

The full conference paper which includes all four parts of this series and footnotes can be downloaded here. You can find previous posts on Article 12 here.

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