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.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Related posts

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




7/7 Bombings 9/11 A1P1 Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology birds directive blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common buzzard common law communications competition confidentiality confiscation order conscientious objection consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Criminal Legal Aid criminal records Cybersecurity Damages data protection death penalty declaration of incompatibility defamation DEFRA Democracy village deportation deprivation of liberty derogations Detention devolution Dignitas dignity Dignity in Dying diplomacy director of public prosecutions disability disclosure Discrimination disease divorce DNA doctors does it matter? domestic violence Dominic Grieve don't ask don't ask don't tell don't tell Doogan and Wood double conviction drones duty of care ECHR economic and social rights economic loss ECtHR Education election Employment Environment environmental information Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Family Family life fatal accidents act Fertility FGM Finance fishing rights foreign criminals foreign office foreign policy France freedom of assembly Freedom of Association Freedom of Expression freedom of information Freedom of Information Act 2000 freedom of movement freedom of speech free speech game birds gangbo gang injunctions Garry Mann gary dobson Gary McFarlane gay discrimination Gay marriage gay rights gay soldiers Gaza Gaza conflict Gender General Dental Council General Election General Medical Council genetic discrimination genetic engineering genetic information genetics genetic testing Germany Google government Grenfell grooming Gun Control gwyneth paltrow gypsies habitats habitats protection hammerton v uk happy new year Hardeep Singh Haringey Council Harkins and Edwards Health healthcare health insurance Heathrow heist heightened scrutiny Henry VII Henry VIII hereditary disorder Hirst v UK HIV HJ Iran HM (Iraq) v The Secretary of state for the home department [2010] EWCA Civ 1322 Holder holkham beach holocaust Home Office Home Office v Tariq homeopathy hooding Hounslow v Powell House of Commons Housing housing benefits Howard League for Penal Reform how judges decide cases hra damages claim HRLA HS2 hs2 challenge hts http://ukhumanrightsblog.com/2011/04/11/us-state-department-reports-on-uk-human-rights/ Human Fertilisation and Embryology Act Human Fertilisation and Embryology Authority human genome human rights Human Rights Act Human Rights Act 1998 human rights advocacy Human rights and the UK constitution human rights commission human rights conventions human rights damages Human Rights Day human rights decisions Human Rights Information Project human rights news Human Rights Watch human right to education human trafficking hunting Huntington's Disease HXA hyper injunctions Igor Sutyagin illegality defence immigration Immigration/Extradition Immigration Act 2014 immigration appeals immigration detention immigration judge immigration rules immunity India Indonesia Infrastructure Planning Committee inherited disease Inhuman and degrading treatment injunction Inquest Inquests insurance insurmountable obstacles intelligence services act intercept evidence interception interim remedies international international criminal court international law international treaty obligations internet internet service providers internship inuit investigation investigative duty in vitro fertilisation Iran Iranian nuclear program Iraq Iraqi asylum seeker Iraq War Ireland irrationality islam Israel Italy iTunes IVF ivory ban jackson reforms Janowiec and Others v Russia ( Japan Jason Smith Jeet Singh Jeremy Corbyn jeremy hunt job Jogee John Hemming John Terry joint enterprise joint tenancy Jon Guant Joseph v Spiller journalism judaism judges Judges and Juries judging Judicial activism judicial brevity judicial deference judicial review Judicial Review reform judiciary Julian Assange jurisdiction jury trial JUSTICE Justice and Security Act Justice and Security Bill Justice and Security Green Paper Justice Human Rights Awards JUSTICE Human Rights Awards 2010 just satisfaction Katyn Massacre Kay v Lambeth Kay v UK Ken Clarke Kerry McCarthy Kettling Kings College koran burning Labour Lady Hale LASPO Law Pod UK Law Society of Scotland leave to enter leave to remain legal aid legal aid cuts Legal Aid Reforms legal blogs Legal Certainty legal naughty step Legal Ombudsman legal representation legitimate expectation let as a dwelling Leveson Inquiry Levi Bellfield lewisham hospital closure lgbtq liability Libel libel reform Liberal Democrat Conference Liberty libraries closure library closures Libya licence conditions licence to shoot life insurance life sentence limestone pavements lisbon treaty Lithuania Litigation litvinenko live exports local authorities locked in syndrome London Legal Walk London Probation Trust Lord Bingham Lord Blair Lord Goldsmith lord irvine Lord Judge speech Lord Kerr Lord Lester Lord Neuberger Lord Phillips Lord Sumption Lord Taylor luftur rahman MAGA Magna Carta mail on sunday Majority Verdict Malcolm Kennedy malice Margaret Thatcher Margin of Appreciation margin of discretion Maria Gallastegui marriage material support maternity pay Matthew Woods Maya the Cat Mba v London Borough Of Merton McKenzie friend Media and Censorship Medical medical liability medical negligence medical qualifications medical records medicine mental capacity Mental Capacity Act Mental Capacity Act 2005 Mental Health mental health act mental health advocacy mental health awareness Mental illness merits review MGN v UK michael gove Midwives migrant crisis Milly Dowler Ministerial Code Ministry of Justice Ministry of Justice cuts misfeasance in public office modern slavery morality morocco mortuaries motherhood Motor Neurone disease Moulton Mousa MP expenses Mr Gul Mr Justice Eady MS (Palestinian Territories) (FC) (Appellant) v Secretary of State for the Home Department murder murder reform Musician's Union Muslim NADA v. SWITZERLAND - 10593/08 - HEJUD [2012] ECHR 1691 naked rambler Naomi Campbell nationality National Pro Bono Week national security Natural England nature conservation naturism Nazi negligence Neuberger neuroscience Newcastle university news new Supreme Court President NHS NHS Risk Register Nick Clegg Nicklinson Niqaab Noise Regulations 2005 Northern Ireland nuclear challenges nuisance nursing nursing home Obituary Occupy London offensive jokes Offensive Speech offensive t shirt oil spill olympics open justice oppress OPQ v BJM orchestra Osama Bin Laden paramountcy principle parental rights parenthood parliamentary expenses parliamentary expenses scandal Parliamentary sovereignty Parliament square parole board pastor Terry Jones patents Pathway Students Patrick Quinn murder Pensions persecution personal data Personal Injury personality rights perversity Peter and Hazelmary Bull PF and EF v UK Phil Woolas phone hacking phone taps physical and mental disabilities physician assisted death Pinnock Piracy Plagiarism planning planning human rights planning system plebgate POCA podcast points Poland Police police investigations police liability police misconduct police powers police surveillance Policy Exchange report political judges Politics Politics/Public Order poor reporting Pope portal possession proceedings power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention predator control pregnancy press press briefing press freedom Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes prisoner voting Prisons prison vote privacy privacy injunction privacy law through the front door Private life private nuisance private use proceeds of crime Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest camp protest rights Protocol 15 psychiatric hospitals Public/Private public access publication public authorities Public Bodies Bill public inquiries public interest public interest environmental litigation public interest immunity Public Order Public Sector Equality Duty putting the past behind quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of) v The General Medical Council [2013] EWHC 2839 (Admin) R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radmacher Raed Salah Mahajna Raed Saleh Ramsgate raptors rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa south african constitution Spain special advocates spending cuts Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal jurisdiction unlawful detention USA US Supreme Court vaccination vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: