R (on the application of Quila and another) (FC) (Respondents) v Secretary of State for the Home Department (Appellant); R (on the application of Bibi and another) (FC) (Respondents) v Secretary of State for the Home Department (Appellant)  UKSC 45 – read judgment.
The Supreme Court has ruled that the Home Secretary’s refusal to grant visas to non-resident spouses under a certain age breached their right to family life under Article 8 of the Convention. A strong dissent from Lord Brown touches on the raw nerve of judicial competence and the role of Article 8 in policy making.
The Supreme Court press summary sets out the factual details of the two cases. Essentially, the issue was whether the ban on the entry for settlement of foreign spouses or civil partners unless both parties are aged 21 or over, contained in Paragraph 277 of the Immigration Rules, was a lawful way of deterring or preventing forced marriages, or at least those associated with assisting a claim for UK residency and citizenship. The minimum age requirement – recently raised from 18 to 21 – was designed to prevent young women who have UK citizenship or residence permission from being pressurised into sponsoring a fiancée or spouse seeking admission to this country.
The Supreme Court, by a 4-1 majority, dismissed the Secretary of State’s appeal on the grounds that the refusal to grant marriage visas to the respondents was an infringement of their rights under Article 8. Lord Brown’s dissenting judgment is considered below.
Reasons for the Judgment
The Court accepted that the policy had a legitimate aim, namely the protection of the rights and freedoms of those who might be forced into marriage, and that it might be rationally connected to that objective. But they found that the efficacy of Rule 277 was “highly debatable”:
The Secretary of State has failed to demonstrate that, when she introduced it, she had robust evidence of any substantial deterrent effect of the amendment upon forced marriages.
The measure was similar to the Home Office prohibition on persons subject to immigration control marrying without the Secretary of State’s written permission, which was found to be unlawful in R (Baiai) v Secretary of State for the Home Department  UKHL 53 .
On any view, the minimum age measure was “a sledgehammer but the Secretary of State has not attempted to identify the size of the nut” .
Whilst the judgment is essentially individual, Lord Wilson found it “hard to conceive” that the Secretary of State could avoid infringement of Article 8 ECHR when applying Paragraph 277 to an unforced marriage.
Lord Brown squares up to the controversial interface between the government and the judiciary by asking two related questions. First, is proving a negative – in this case the deterrent effect of Para 277 on forced marriages – a possible thing to do? If so, who is best placed to do it, judges or policy makers?
Second, what are the implications of the majority’s line of reasoning? As he points out, other signatory states, notably Germany, Austria and the Netherlands, have imposed a similar age requirement for both parties and Belgium is planning to follow suit. Denmark has set the bar even higher, at age 24. And indeed, the EU authorities have found the problem to be sufficiently urgent to be in need of cross-border regulation. The “Family – Reunification” Directive 2003/86/EC deals with third country national sponsors thus:
In order to ensure better integration and to prevent forced marriages Member States may require the sponsor and his/her spouse to be of a minimum age, and at maximum 21 years, before the spouse is able to join him/her.(Article 4(5))
Precisely because it is so hard to prove how many – if any – forced marriages have been prevented by the new rule, Lord Brown asks whether it right to conclude that the whole matter “is all just too difficult and uncertain” and therefore should the Secretary of State be therefore “disabled from taking the course adopted by those other EU countries which share her view on the best way forward”? Since there is such scant evidence, both on the extent to which forced marriages may be deterred and the oppressive effect the rule may have on genuine matches, the whole issue is a matter of judgment, which, unless demonstrably wrong, should be rather for government than for the courts:
Still more obviously, the comparison between the enormity of suffering within forced marriages on the one hand and the disruption to innocent couples within the 18-21 age group whose desire to live together in this country is temporarily thwarted by the rule change, is essentially one for elected politicians, not for judges.
Which brings us neatly round to the “uncomfortable thought” raised by Laws LJ at last week’s seminar Strasbourg and the UK: Dialogue or Conflict:
One of the main grouses, complaints we have about the human rights enterprise – why should judges decide matters of social policy at all? The political rights, Article 8 – 12, with the right set out in the first part and the derogation in the second, creates a structure which means that a very large number of legal debates is about how the balance between private right and public interest should be struck. But what authority, expertise, do lawyers have to strike that balance, that is special to them? Why are lawyers any better qualified to assess family ties in foreign criminal questions?
The Immigration Rules distil difficult questions of policy, and any adjudication on their meaning invariably raises the question over whether the courts or governments are best placed to determine their application. It is perhaps not surprising that this old debate has opened up again; it was thought at one time that the proportionality test would make both political and judicial decisions sufficiently transparent to lay it to rest. But this case is a very good example of a judicial decision resting on inadequate data, putting the Home Secretary in the “unenviable position” vis a vis the Immigration Rules policy. As Lord Brown points out, if rule 277 is now to be struck down on Article 8 grounds
there is nothing the Secretary of State can do by way of an appeal to Strasbourg to reinstate it. Are we really to say that the position is plain and that Germany, Austria, the Netherlands, Belgium, Denmark and other such Council of Europe states with similar rules must also necessarily be in breach of article 8?…Article 8 is a difficult provision which has already led to some highly contentious, not to say debatable, decisions. Upon that I am sure we would all agree. In a sensitive context such as that of forced marriages it would seem to me not merely impermissible but positively unwise for the courts yet again to frustrate government policy except in the clearest of cases.
Cue to aspirant spouses, fiancees and civil partners in all those countries to take this point to Strasbourg.
The departure from Abdulaziz
The Secretary of State relied on Abdulaziz v United Kingdom (1985) 7 EHRR 471 in which the Strasbourg Court held that there was no lack of respect for family life in denying entry to foreign spouses. In an oft-cited paragraph, Court expressly declared that there was no positive obligation on the State to respect a couple’s choice of country of matrimonial residence:
The duty imposed by article 8 cannot be considered as extending to a general obligation on the part of a contracting state to respect the choice by married couples of the country of their matrimonial residence and to accept the non-national spouses for settlement in that country.
However, the majority declined to follow it because it was an “old decision”, there was dissent at the time and no clear and subsequent Strasbourg case law has been inconsistent with its line.
Although it was not the focus of Lord Brown’s dissent, the decision to bin the principle in Abdulaziz deserves some discussion here if only because it has been cited with approval so often, and not just in the distant past (see Y v Russia (2008) 51 EHRR 21 and in the Supreme Court (see ZH (Tanzania) v Secretary of State for the Home Department  UKSC 4, para 19. Nevertheless on this occasion the Supreme Court distinguished it on the basis that Abdulaziz was essentially a discrimination case, not a family rights case, and that Article 8 only featured tangentially (because the prohibition on discrimination in Article 14 needs a “substantive” right to cleave to).
In that case, they said, stress had been laid on the fact that the disputed obligation was positive (to allow the husbands to reside in the UK); that the disputed obligation in the present case was similar (to allow the applicants to join their British spouses); and that on the other hand, where the challenge was to the state’s removal of a person, the disputed obligation was negative (not to remove him); and that it would be illogical if this “elusive difference” were to affect whether there had been interference with rights under article 8.
With respect it is hard to see why this difference, between allowing entry to aliens, as opposed to removing persons who hold British citizenship, is at all “elusive”. It may be that since the Supreme Court’s own ruling in ZH (Tanzania) the Abdulaziz principle cannot apply to cases where children are involved since their “best interests” must prevail (see our previous post on this subject). But in cases not involving children, such as the one at hand, this departure from Abdulaziz is mystifying. If such a firm ruling can be dispensed with so readily, where can signatory states find any reliable guidance on the limits of the right to family life under Article 8?
It is nothing to the point to repeat the Strasbourg Court’s comment, in Tuquabo-Tekle v The Netherlands  that “the boundaries between the state’s positive and negative obligations under this provision do not lend themselves to precise definition”. The Strasbourg Court may find it convenient to blur the distinction in a particular case but national courts are not bound to follow that line (nor is the Strasbourg Court itself, for that matter). Lady Hale objects that “the Secretary of State cannot at one and the same time say that she is not doing this for the purpose of controlling immigration and rely upon jurisprudence which is wholly premised on the state’s right to control immigration,” but immigration control, which admittedly lurks behind the whole argument, is not in point here; what is in question is the precise interpretation of Article 8. And it looks as if there is no settled explanation of what Article 8 on offer, such as whether it does or does not impose a positive obligation to enable non-nationals to choose where to marry or where to cohabit once married. Without reliable doctrinal controls on its scope, it is no wonder that this provision has fallen into such disrepute.
Angus McCullough QC, who is one of the editors of this blog (although has had no part in the post above), and Andrea Lindsay Strugo, were instructed by the Treasury Solicitor in this case.
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