Three women, all lawfully settled in the UK, had married third-country nationals but, at first, the Secretary of State had refused permission for their husbands to remain with them, or join them, in the UK.
Held: The refusals of permission had not infringed the rights of the women and of their husbands to respect for their family life under article 8 but, in that the ground for the refusals had been a rule which had afforded a different and unjustified treatment of male, as opposed to female, spouses of persons lawfully settled in the UK, the women had suffered discrimination on the ground of sex in violation of their rights under article 14, taken together with article 8, of the Convention: ‘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.’
The court was astute to recognise the right under international law of a state to control immigration into its territory. This right has been weighed against the degree of interference with the enjoyment of family life caused by the immigration restriction often not because this served a legitimate aim under article 8(2) but because it acted as a free-standing restriction on the article 8 right. ‘The Court recalls that, although the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, there may in addition be positive obligations inherent in an effective ‘respect’ for family life. However, especially as far as these obligations are concerned, the notion of ‘respect’ is not clear cut: having regard to the diversity of the practices followed and the situations obtaining in the Contracting States, the notion’s requirements will vary considerably from case to case. Accordingly, this is an area in which the Contracting Parties enjoy a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention with due regard to the needs and resources of the community and of individuals. In particular, in the area now under consideration, the extent of a State’s obligation to admit in its territory relatives of settled immigrants will vary according to the particular circumstances of the persons involved. Moreover, the Court cannot ignore that the present case is concerned not only with family life but also with immigration and that, as a matter of well-established international law and subject to its treaty obligations, a State has the right to control the entry of non-nationals into its territory.’
There can be a breach of article 14 even if there is no breach of a substantive Convention right. The refusal to let husbands join their wives here was justified by the right of the United Kingdom to control immigration. The difference in treatment between the husbands of wives settled here and the wives of husbands settled here had still to be justified under article 14. It was not.
‘Article 14 complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to ‘the enjoyment of the rights and freedoms’ safeguarded by those provisions. Although the application of article 14 does not necessarily presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter.’
9214/80, 9473/81, 9474/80, (1985) 7 EHRR 471, [1985] ECHR 7
Worldlii
European Convention on Human Rights 14
Human Rights
Cited by:
Cited – Davies v The United Kingdom ECHR 16-Jul-2002
The applicant had been subject to applications for his disqualification from acting as a company director. The Secretary of State waited until the last day before issuing proceedings, and the proceedings were then delayed another three years pending . .
Cited – Ahsan Ullah, Thi Lien Do v Special Adjudicator, Secretary of State for the Home Department CA 16-Dec-2002
The appellants challenged refusal of asylum, claiming that their return to countries which did not respect their religion, would infringe their right to freedom of religious expression. It was accepted that the applicants did not have a sufficient . .
Cited – Hooper and Others, Regina (on the Application of) v Secretary of State for Work and Pensions CA 18-Jun-2003
The appellants were widowers whose wives had died at a time when the benefits a widow would have received were denied to widowers. The legislation had since changed but they variously sought compensation for the unpaid sums.
Held: The appeal . .
Cited – Regina on the Application of Wilkinson v The Commissioners of Inland Revenue CA 18-Jun-2003
The claimant had not received the same tax allowance following his wife’s death as would have been received by a woman surviving her husband. That law had been declared incompatible with Human Rtights law as discriminatory, but the respondent . .
Cited – Carson and Reynolds v Secretary of State for Work and Pensions CA 17-Jun-2003
The claimant Reynolds challenged the differential treatment by age of jobseeker’s allowance. Carson complained that as a foreign resident pensioner, her benefits had not been uprated. The questions in each case were whether the benefit affected a . .
Cited – K v London Borough of Lambeth CA 31-Jul-2003
The claimant appealed against refusal of judicial review. She had entered the UK, and applied for asylum. She was then found to have contracted a marriage of convenience, and thus become ineligible for support. She appealed and now sought housing . .
Cited – Anufrijeva and Another v London Borough of Southwark CA 16-Oct-2003
The various claimants sought damages for established breaches of their human rights involving breaches of statutory duty by way of maladministration. Does the state have a duty to provide support so as to avoid a threat to the family life of the . .
Cited – Regina v Special Adjudicator ex parte Ullah; Regina v Secretary of State for the Home Department HL 17-Jun-2004
The applicants had had their requests for asylum refused. They complained that if they were removed from the UK, their article 3 rights would be infringed. If they were returned to Pakistan or Vietnam they would be persecuted for their religious . .
Cited – Secretary of State for Work and Pensions v M HL 8-Mar-2006
The respondent’s child lived with the estranged father for most of each week. She was obliged to contribute child support. She now lived with a woman, and complained that because her relationship was homosexual, she had been asked to pay more than . .
Cited – Secretary of State for Work and Pensions v M HL 8-Mar-2006
The respondent’s child lived with the estranged father for most of each week. She was obliged to contribute child support. She now lived with a woman, and complained that because her relationship was homosexual, she had been asked to pay more than . .
Cited – Huang v Secretary of State for the Home Department HL 21-Mar-2007
Appellate Roles – Human Rights – Families Split
The House considered the decision making role of immigration appellate authorities when deciding appeals on Human Rights grounds, against refusal of leave to enter or remain, under section 65. In each case the asylum applicant had had his own . .
Cited – AL (Serbia) v Secretary of State for the Home Department; Rudi v Same HL 25-Jun-2008
Each claimant had arrived here with their parents, and stayed for several years. They were excluded from the scheme allowing families who had been here more than three years to stay here, because they had attained 18 and were no longer dependant on . .
Cited – ZH (Tanzania) v Secretary of State for The Home Department SC 1-Feb-2011
The respondent had arrived and claimed asylum. Three claims were rejected, two of which were fraudulent. She had two children by a UK citizen, and if deported the result would be (the father being unsuitable) that the children would have to return . .
Cited – Quila and Another, Regina (on The Application of) v Secretary of State for The Home Department SC 12-Oct-2011
Parties challenged the rule allowing the respondent to deny the right to enter or remain here to non EU citizens marrying a person settled and present here where either party was under the age of 21. The aim of the rule was to deter forced . .
Cited – MM (Lebanon) and Others, Regina (on The Applications of) v Secretary of State and Another SC 22-Feb-2017
Challenge to rules requiring certain minimum levels of income (Minimum Income Requirement – MIR) for allowing entry for non-EEA spouse.
Held: The challenges udder the Human Rights Act to the Rules themselves failed. Nor did any separate issue . .
Cited – McLaughlin, Re Judicial Review SC 30-Aug-2018
The applicant a differently sexed couple sought to marry under the Civil Partnership Act 2004, but complained that they would lose the benefits of widowed parent’s allowance. Parliament had decided to delay such rules to allow assessment of reaction . .
Lists of cited by and citing cases may be incomplete.
Human Rights, Immigration, Family
Leading Case
Updated: 01 November 2021; Ref: scu.164960