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 in the UK pursuant to a grant of leave for more than six months of which at least three months was unexpired. The appellants said that section 19 of the 2004 Act placed too large an interference in their human right to be married. The rules required a certificate of approval to be obtained before entry was to be allowed for the marriage. That certificate could be refused on several but restrictive grounds.
Held: The appeal against the declaration of incompatibility failed. The statutory scheme was unobjectionable save in places where in any event the Secretary had agreed to remove the discriminations. The Immigration Directorate’s Instructions however were more restrictive in the conditions to be met before allowing a marriage: ‘The vice of the scheme is that none of these conditions, although of course relevant to immigration status, has any relevance to the genuineness of a proposed marriage, which is the only relevant criterion for deciding whether permission should be given to an applicant who is qualified under national law to enter into a valid marriage.’ and
the authorities are not free simply to disregard those marriages which they believe have been entered into purely in order to gain some perceived immigration advantage. No doubt such marriages do take place. No doubt also they are difficult to detect, not least because of the difficulty of unpicking the variety of reasons why two people might choose to marry one another. There are many perfectly genuine marriages which may bring some immigration advantage to one or both of the parties depending on where for the time being they wish to make their home. That does not make them ‘sham’ marriages. ‘ and
‘this scheme is an arbitrary and unjust interference with the right to marry, which is recognised internationally in article 16.1 of the Universal Declaration of Human Rights and article 23.2 of the International Covenant on Civil and Political Rights and regionally in article 12 of the European Convention on Human Rights.’
Lord Bingham of Cornhill, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood, Lord Neuberger of Abbotsbury
[2008] UKHL 53, Times 13-Aug-2008, [2008] 3 WLR 549, [2009] 1 AC 287, (2008) 26 BHRC 429, [2008] 3 FCR 1, [2008] HRLR 45, [2008] Fam Law 994, [2008] 2 FLR 1462, [2008] 3 All ER 1094, [2008] UKHRR 1232
Bailii, HL
European Convention on Human Rights 12, Asylum and Immigration (Treatment of Claimants, etc) Act 2004 19, Marriage Act 1949, EC Council Resolution 97/C382/01 of 4 December 1997 on measures to be adopted on the combating of marriages of convenience 1, Immigration and Asylum Act 1999 24
England and Wales
Citing:
See Also – Baiai and Others, Regina (on the Application of) v Secretary of State for the Home Department Admn 10-Apr-2006
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 . .
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. . .
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 – 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 – 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 – 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 – Sydnet Draper v United Kingdom ECHR 1980
(Commission) Rule against marriage of prisoners breach of art 12: ‘The Commission first recalls that the Court has held that, even though a right is not formally denied, ‘hindrance in fact can contravene the Convention just like a legal . .
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 . .
Cited – X and Y v Switzerland ECHR 1978
The court considered the denial to a husband and wife of the opportunity to enjoy sexual relations while they were both in prison. . .
Cited – Regina v Secretary of State for Home Department ex parte Mellor CA 4-Apr-2001
A prisoner had no right to facilities to artificially inseminate his wife. In this case, he might not be released for several years, and there were no medical reasons advanced for finding exceptional reasons under the Department policy. Provided the . .
Cited – ELH and PBH v United Kingdom ECHR 1997
The Commission considered a complaint by a prisoner as to a refusal to allow him conjugal relations with his wife while he was in prison. . .
Cited – A v United Kingdom ECHR 8-Oct-1982
A disabled UK citizen living on benefits complained of the denial of entry clearance to his Filippino fiancee whom he had never met but wished to marry here. The ground of refusal was that she would be a charge on public funds.
Held: The right . .
Cited – Sporrong and Lonnroth v Sweden ECHR 23-Sep-1982
Balance of Interests in peaceful enjoyment claim
(Plenary Court) The claimants challenged orders expropriating their properties for redevelopment, and the banning of construction pending redevelopment. The orders remained in place for many years.
Held: Article 1 comprises three distinct . .
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 – Silver v Silver CA 1955
. .
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 by:
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 . .
Approved – O’Donoghue and Others v United Kingdom ECHR 14-Dec-2010
. .
Cited – Ali and Bibi, Regina (on The Applications of) v Secretary of State for The Home Department SC 18-Nov-2015
At the claimants alleged that the rules requiring a foreign spouse or partner of a British citizen or a person settled in this country to pass a test of competence in the English language before coming to live here were an unjustifiable interference . .
Cited – Ali and Bibi, Regina (on The Applications of) v Secretary of State for The Home Department SC 18-Nov-2015
At the claimants alleged that the rules requiring a foreign spouse or partner of a British citizen or a person settled in this country to pass a test of competence in the English language before coming to live here were an unjustifiable interference . .
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 . .
Lists of cited by and citing cases may be incomplete.
Human Rights, Family
Updated: 11 November 2021; Ref: scu.271271