Policy to prevent forced marriages “arbitrary and disruptive”, says Court of Appeal

4 January 2011 by

Quila & Ors v Secretary of State for the Home Department & Ors [2010] EWCA Civ 1482 – Read judgment

A key part of the government’s strategy to combat forced marriages, preventing people under the age of 21 from entering the country to marry, has been heavily criticised by the Court of Appeal.

The decision shows that even policies which pursue a legitimate and laudable aim must still be a proportionate to the problem they seek to address, or risk breaching the human rights of those affected. But it also highlights how difficult it is to set effective policies to combat hazardous arrangements which can involve rape, child abuse and domestic violence, and affect thousands of UK residents annually.

Lord Justice Sedley said that the ban on immigration for the purposes of marriage for people under 21 is an “arbitrary and disruptive impact of the rule on the lives of a large number of innocent young people”.

Paragraph 277 of the Immigration Rules prevents anyone under the age of 21 from entering the country as a spouse, unless there are clear exceptional compassionate circumstances to merit the Home Secretary granting an exception.

The rationale of the policy, as stated by the government counsel in this appeal, is that forced marriages can often involve rape, child abuse and domestic violence. The problem is not only serious but also large: according to one report there may have been between 5,000 and 8,000 reported cases in the UK in 2008.

Unfortunately, forced marriages often go unreported, so it is difficult for the government to identify victims. It is known, however, that a significant proportion (just over a quarter) involve those aged 18-20. Therefore, by raising the age limit below which people cannot immigrate to marry, forced marriages would be significantly reduced. Moreover, the older the individual, the better equipped they are to deal resist pressure to enter the marriage in the first place. So the remaining cases may be easier to deal with through other means.

But a blanket ban such as this clearly runs the risk of breaching the human rights of 18 to 21 year olds who cannot emigrate to marry. Specifically, the right to private and family life (article 8 of the European Convention) and the right to marry (article 12). As such, as is the case with any breaches of “qualified” human rights – that is, rights which can be lawfully breached by the state in certain limited circumstances – the policies must be proportionate to the ends sought.

Three-pronged attack

The two couples who brought the original (initially unsuccessful) claim criticised this rationale on the basis that there was no alternative report, and that some government statistics indicate that in 2007 no more than 4% of marriages of 18 to 20 year olds were considered by the Forced Marriage Unit to be forced marriages.

They attacked the rule on three levels. First that it is irrational due to its harmful and unnecessary consequences. Secondly, it a disproportionate inhibition on family and private life and on the right to marry, both under common and human rights law. Thirdly, it is discriminatory, making an illogical exception in favour of service personnel.

On irrationality, Lord Justice Sedley said that the rule “has little, but not nothing, to do with preventing forced marriages”. As such, although the policy was very contestable, it was not irrational. His ruling is no great surprise: irrationality is very difficult to prove in public law cases, as a court must be convinced that a policy is so outrageous that no sensible person could have arrived at it.

On the second ground of challenge, proportionality, the appellants had more success. Lord Justice Sedley held that rule 277 represents a “direct interference with what the common law and Convention both value as a fundamental right”, as

In the eyes of the common law it is not simply the right to marry and not simply the right to respect for family life but their combined effect which constitutes the material right: that is to say a right not merely to go through a ceremony of marriage but to make a reality of it by living together. For the state to make exile for one of the spouses the price of exercising the right to marry and embark on family life requires powerful justification …  (para 48)

Having found that the rules interfered with fundamental rights, the next question – as is often the question in cases involving human rights – was whether the interference was proportionate.

It was not. The rule “subjects all young couples to an unspoken but irrebuttable presumption that their marriage is a forced one.” The judge had some sympathy (para 53) with the government’s point that the rule had to be a blanket one as it is was practically impossible to enquire into the voluntariness or otherwise of a marriage. But this explanation was not enough.

Moreover, the justification for the policy, as advanced by the Home Office, “”is only obliquely, partially and in large part speculatively related to the measure under scrutiny”. In other words, it was built on shaky ground, and the reasoning on the human rights implications was “both inadequate and muddled” (para 62).

As to discrimination, Lord Justice Sedley declined to rule on this, as the arguments had already been addressed by his ruling under proportionality. The point was raised due to the exception introduced by amendment in favour of members of the armed services, who are excluded from the ban. Again, the judge was unimpressed by the government’s justification for this, as there was no evidence that members of the armed services were more or less likely to be affected by forced marriages.

Lord Justices Pitchford and Gross agreed with Lord Justice Sedley, although for slightly different reasons (see para 68 onwards).

Success, but rule not struck down

Despite Lord Justice Sedley’s strong criticism of rule 277, he declined to go further than ruling that the particular effect on the two appellants was unlawful. He did not strike down the rule, since the court had “not been dealing with its impact on couples where neither spouse is a United Kingdom national”.

So, whether to keep the rule in a limited form, or to drop it altogether, is a matter for the Home Secretary, who may also chose to appeal the decision to the supreme court. Given the strong criticism of the policy’s rationale by the court, it seems likely that it will be reassessed altogether, or run the risk of more potentially expensive claims.

Meanwhile, although the decision shows that all public policy must be legitimate to the end sought or run risk of breaching human rights law, it also demonstrates the difficulty of setting policies which prevent forced marriages. The government has already been criticised by the High Court for attempting to use secret evidence procedures to combat the issue (see our post). But, if these shady and potentially abusive arrangements remain unreported, it is difficult to see how the government can attack the problem without affecting more people than is strictly necessary.

Angus McCullough QC, who is one of the editors of this blog (although has had no part in the post above), and Neil Sheldon, were instructed by the Treasury Solicitor in this case.

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