The respondent brought in laws restricting marriages between persons subject to immigration control, requiring those seeking non Church of England marriages to first obtain a certificate from the defendant that the marriage was approved. The applicants said this was discriminatory and infringed their human rights.
Held: Legislation which prevented marriages of convenience between aliens and nationals as a means of immigration control could be justified, but the exemption only of marriages conducted in accordance with the rites of the Church of England made the legislation discriminatory: ‘the jurisprudence of the European Commission on Human Rights expressly permits the introduction of legislation to prevent marriages entered into for the purpose of avoiding immigration control notwithstanding that this legislation might interfere with the right to marry.’ and ‘the Secretary of State and Parliament are entitled to substantial deference in determining what restrictions, if any, are appropriate to impose on article 12 rights ‘ There is clear evidence of sham marriages entered into to secure residence in the UK. However there was no evidence to justify the distinction between the use of the different forms of ceremony. The legislation took no account of steps which would be taken by other religions which might have the same protective effect as those of the rites of the Church of England. The legislation took no account either of evidence that the relationship to be solemnised may have been demonstrably long standing and loving. ‘[T]he new regime is not rationally connected to the legislative objective as it regards the only and crucial relevant factors in determining whether a non EU national can marry in this country as his or her immigration status or the length of an outstanding application . .’, and nor were those present for less than three months allowed to make any representations. The regime was not proportionate.
Judges:
Silber J
Citations:
[2006] EWHC 823 (Admin), Times 14-Apr-2006, [2007] 1 WLR 693, [2006] 36 Fam Law 535, [2006] 2 FLR 645, [2006] 2 FCR 131, [2006] 3 All ER 608
Links:
Statutes:
European Convention on Human Rights 12 14, Asylum and Immigration (Treatment of Claimants etc) Act 2004 19-25, Immigration (Procedure for Marriage) Regulations 2005, Marriage Act 1949, Immigration Rules and the Immigration (European Economic Area) Regulations 2000
Jurisdiction:
England and Wales
Citing:
Cited – Taylor v Lancashire County Council and others CA 17-Mar-2005
The tenant occupied his farm under a lease limiting his use of the farm. He was found to be trading in breach of his covenant and a notice to quit was issued and possession sought. He argued that the 1986 Act was discriminatory and inadequate to . .
Cited – Hamer v United Kingdom ECHR 1979
(Commission) The Commission considered the right of a prisoner in prison to get married.
Held: A rule against such marriages was incompatible with article 12. The Commission explained the power of national laws in relation to article 12: ‘Such . .
Cited – F v Switzerland ECHR 18-Dec-1987
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 12; Non-pecuniary damage – finding of violation sufficient; Costs and expenses award – domestic proceedings; Costs and expenses award – Convention . .
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 – Wilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent lender of its . .
Cited – Klip and Kruger v Netherlands ECHR 1997
The Commission heard a complaint that the parties’ article 12 rights were infringed because under Dutch Act on prevention and suppression of marriages of convenience, there had to be a systematic examination of all intended marriages involving . .
Cited – Regina (Daly) v Secretary of State for the Home Department HL 23-May-2001
A prison policy requiring prisoners not to be present when their property was searched and their mail was examined was unlawful. The policy had been introduced after failures in search procedures where officers had been intimidated by the presence . .
Cited – De Freitas v The Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing and others PC 30-Jun-1998
(Antigua and Barbuda) The applicant was employed as a civil servant. He joined a demonstration alleging corruption in a minister. It was alleged he had infringed his duties as a civil servant, and he replied that the constitution allowed him to . .
Cited – Sanders v France ECHR 1996
A male Turkish national and a female French national, living together in Istanbul, complained of delays in obtaining a certificate of capacity to marry under French law. The issue as to the obtaining of a certificate related to (alleged) concerns . .
Cited – A v United Kingdom ECHR 1982
The Commission considered a complaint where entry clearance was refused for the Philippine fiancee of a disabled man of limited means on the basis that she did not have the means to maintain and support herself without access to public funds.
Cited – Samaroo and Sezek v Secretary of State for the Home Department CA 17-Jul-2001
Two foreign nationals with leave to remain in this country committed serious crimes. The Secretary of State ordered their deportation.
Held: Where the deportation of a foreigner following a conviction here, would conflict with his human . .
Cited – Vervaeke v Smith HL 1983
A petitioner for a decree of nullity of an English marriage in the English courts on the grounds of lack of consent to the marriage, having failed to obtain such decree, obtained a declaration from the Belgian court that the English marriage, was . .
Cited – Netherlands ECHR 1985
(Commission ) The first applicant (a Moroccan) had come to the Netherlands and obtained a residence permit on the strength of a permanent relationship with a Dutch woman. That had failed, but he now wished to marry another Dutch national. The . .
Cited by:
See Also – Baiai and Others, Regina (on the Application of) v Secretary of State for the Home Department and Another Admn 10-May-2006
The claimants had successfully brought judicial review of the defendant’s policies concluding that the defendant had unlawfully interfered with their right to family life by effectively preventing them marrying under the 2004 Act. They now sought . .
See Also – Baiai and Another, Regina (on the Application of) v Secretary of State for Home Department Admn 16-Jun-2006
The 2004 Act and Regulations operated to prevent the claimant marrying. He succeeded in challenging the regulations, and now sought damages. . .
Appeal from – Secretary of State for the Home Department v Baiai and others CA 23-May-2007
The claimants challenged rules which meant that certain immigrants subject to immigration control were unable to marry, save only those marrying according to the rites of the Church of England.
Held: The rules were not justified by evidence . .
See Also – Baiai and others, Regina (on the Application of) v Secretary of State for the Home Department HL 30-Jul-2008
In order to prevent marriages of convenience in the UK the Secretary of State introduced a scheme under which certain persons subject to immigration control required her written permission to marry and would not receive it unless they were present . .
Lists of cited by and citing cases may be incomplete.
Family, Immigration, Human Rights, Discrimination
Updated: 18 July 2022; Ref: scu.240336
