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 marriages.
Held: The Secretary of State’s appeal failed (Lord Brown dissenting). Following Razgar, the question requiring to be answered was whether there had been an interference by a public authority with the exercise of a person’s right to respect for his private or family life and if so, whether it had had consequences of sufficient gravity to engage the operation of the article 30.
Lord Wilson cited with approval Lord Bingham’s formulation in Huang and Baroness Hale and said: ‘where delicate and difficult judgment are involved . . this court will treat with appropriate respect the views taken by those whose primary responsibility is to make the judgments in question. But those views cannot be decisive. Ultimately, it is for the courts to decide whether or not the Convention rights have been breached: R (SB) v Denbigh High School [2007] 1 AC 100; Belfast City Council v Miss Behavin’ Ltd [2007] 1 WLR 1420.’
As to the requirements for finding a valid interference in artiicle 8 rights, ‘four questions generally arise’: ‘(a) is the legislative objective sufficiently important to justify limiting a fundamental right?; (b) are the measures which have been designed to meet it rationally connected to it?; (c) are they no more than are necessary to accomplish it?; and (d) do they strike a fair balance between the rights of the individual and the interests of the community?’
Lord Phillips, President, Lady Hale, Lord Brown, Lord Clarke, Lord Wilson
UKSC 2011/0022, [2011] UKSC 45, [2012] 1 All ER 1011, [2011] 3 WLR 836, [2012] Imm AR 135, [2012] 1 FLR 788, [2011] UKHRR 1347, [2012] Fam Law 21, [2011] 3 FCR 575, [2011] INLR 698, [2012] 1 AC 621, [2012] HRLR 2
SC, SC Summ, Bailii Summary, Bailii
European Convention on Human Rights 6, Family Law Act 1996 63A(4), Forced Marriage (Civil Protection) Act 2007 81, Directive 2003/86/EC
England and Wales
Citing:
At First Instance – Quila and Another v Secretary of State for The Home Department Admn 7-Dec-2009
The claimant, a Chilean national, sought review of a decision not to allow him to stay in the UK as the husband of a British national. He said that the decision was based on him being under 21, and that this was discriminatory, and infringed his . .
Appeal from – Quila and Another v Secretary of State for The Home Department CA 21-Dec-2010
The court was asked whether the ban contained in paragraph 277 of the immigration rules on the entry for settlement of foreign spouses between the ages of 18 and 21 is a lawful way of dealing with the problem of forced marriages. . .
Cited – Abdulaziz etc v The United Kingdom ECHR 28-May-1985
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 . .
Cited – Costello-Roberts v The United Kingdom ECHR 25-Mar-1993
‘Slippering’, a punishment by hitting a child with a slipper, when used as part of school discipline was not a degrading punishment under the convention. Conduct must attain a minimum level of severity to engage the operation of the Convention. . .
Cited – Gul v Switzerland ECHR 19-Feb-1996
A Turkish father, who had been permitted on humanitarian grounds to reside with his wife in Switzerland, failed to establish that, by refusing to allow their seven-year-old son to join them in Switzerland, the state had interfered with respect for . .
Cited – Boultif v Switzerland ECHR 2-Aug-2001
The applicant complained under Article 8 that the Swiss authorities had not renewed his residence permit, after which he had been separated from his wife, a Swiss citizen and who could not be expected to follow him to Algeria. Switzerland argued . .
Cited – Regina v Sectretary of State for the Home Department ex parte Razgar etc HL 17-Jun-2004
The claimant resisted removal after failure of his claim for asylum, saying that this would have serious adverse consequences to his mental health, infringing his rights under article 8. He appealed the respondent’s certificate that his claim was . .
Cited – Rodrigues Da Silva and Hoogkamer v The Netherlands ECHR 31-Jan-2006
A Brazilian mother came to the Netherlands in 1994 and set up home with a Dutch national but not applying for a residence permit. In 1996 they had a daughter who became a Dutch national. In 1997 they split up and the daughter remained with her . .
Cited – AG (Eritrea) v Secretary of State for the Home Department CA 20-Nov-2007
The threshold requirement referable to the nature of the consequences was ‘not a specially high one’
Sedley LJ discussed the Huang case: ‘The effect of their Lordships’ decision (and, if we may say so, the intended effect of this court’s . .
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 – Tuquabo-Tekle and others v The Netherlands ECHR 15-Sep-2010
A mother, father and their three sons were of Eritrean ethnicity but lived in the Netherlands and had acquired Dutch citizenship. When leaving Eritrea in 1989, the mother had left behind a daughter, then aged eight. When she was aged 15, an . .
Cited – Y v Russia ECHR 4-Dec-2008
The applicants complained about the first applicant’s deportation to China, about his unlawful detention, about the disruption of their family life and about the absence of domestic remedies. They referred to Articles 3, 5, 8 and 13 of the . .
Cited – Regina (Holding and Barnes plc) v Secretary of State for Environment Transport and the Regions; Regina (Alconbury Developments Ltd and Others) v Same and Others HL 9-May-2001
Power to call in is administrative in nature
The powers of the Secretary of State to call in a planning application for his decision, and certain other planning powers, were essentially an administrative power, and not a judicial one, and therefore it was not a breach of the applicants’ rights . .
Cited – Marcic v Thames Water Utilities Limited HL 4-Dec-2003
The claimant’s house was regularly flooded by waters including also foul sewage from the respondent’s neighbouring premises. He sought damages and an injunction. The defendants sought to restrict the claimant to his statutory rights.
Held: The . .
Cited – Begum (otherwise SB), Regina (on the Application of) v Denbigh High School HL 22-Mar-2006
The student, a Muslim wished to wear a full Islamic dress, the jilbab, but this was not consistent with the school’s uniform policy. She complained that this interfered with her right to express her religion.
Held: The school’s appeal . .
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 – 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 . .
Cited – In re KR (Abduction: Forcible Removal by Parents) FD 1999
The court set out a form for use when inviting the cooperation in securing HM’s return to the jurisdiction of a child taken abroad by her parents for a forced marriage of the police authorities in this country and ‘respectfully requesting and . .
Cited – Thlimmenos v Greece ECHR 6-Apr-2000
(Grand Chamber) The application of a rule that a felon could not become a chartered accountant infringed the rights under article 14, taken in conjunction with article 9, of a pacifist convicted of the felony of refusing to perform military service. . .
Cited – FH (Post-flight spouses: Iran) v Entry Clearance Officer, Tehran UTIAC 10-Aug-2010
UKIAT The Immigration Rules make no provision for the admission of post-flight spouses of refugees with limited leave. The Rules should be changed. In the mean time it is most unlikely that it will be . .
Cited – Sen v The Netherlands ECHR 21-Dec-2001
. .
Cited – Pretty v The United Kingdom ECHR 29-Apr-2002
Right to Life Did Not include Right to Death
The applicant was paralysed and suffered a degenerative condition. She wanted her husband to be allowed to assist her suicide by accompanying her to Switzerland. English law would not excuse such behaviour. She argued that the right to die is not . .
Cited – Odelola v Secretary of State for the Home Department HL 20-May-2009
The appellant had applied for leave to remain as a postgraduate doctor. Before her application was determined, the rules changed. She said that her application should have been dealt with under the rules applicable at the time of her application. . .
Cited – Uner v The Netherlands ECHR 18-Oct-2006
(Grand Chamber) The court considered the application of article 8 considerations in extradition and similar proceedings, and said: ‘the best interests and well-being of the children, in particular the seriousness of the difficulties which any . .
Cited – Haghighi v The Netherlands ECHR 14-Apr-2009
. .
Cited – Omoregie And Others v Norway ECHR 31-Jul-2008
. .
Cited – Belfast City Council v Miss Behavin’ Ltd HL 25-Apr-2007
Belfast had failed to license sex shops. The company sought review of the decision not to grant a licence.
Held: The council’s appeal succeeded. The refusal was not a denial of the company’s human rights: ‘If article 10 and article 1 of . .
Cited by:
Cited – Bank Mellat v Her Majesty’s Treasury (No 2) SC 19-Jun-2013
The bank challenged measures taken by HM Treasury to restrict access to the United Kingdom’s financial markets by a major Iranian commercial bank, Bank Mellat, on the account of its alleged connection with Iran’s nuclear weapons and ballistic . .
Cited – Bank Mellat v Her Majesty’s Treasury (No 2) SC 19-Jun-2013
The bank challenged measures taken by HM Treasury to restrict access to the United Kingdom’s financial markets by a major Iranian commercial bank, Bank Mellat, on the account of its alleged connection with Iran’s nuclear weapons and ballistic . .
Cited – Birks, Regina (On the Application of) v Commissioner of Police of the Metropolis Admn 25-Sep-2014
birks_cpmAdmn1409
The claimant police officer sought judicial review of a decision to continue his suspension. He had been investigated and cleared after a death in custody. He sought to join the Church of England Ministry and was offered a post. He was re-assured . .
Cited – Lord Carlile of Berriew QC, and Others, Regina (on The Application of) v Secretary of State for The Home Department SC 12-Nov-2014
The claimant had supported the grant of a visa to a woman in order to speak to members of Parliament who was de facto leader of an Iranian organsation which had in the past supported terrorism and had been proscribed in the UK, but that proscription . .
Cited – Nicklinson and Another, Regina (on The Application of) SC 25-Jun-2014
Criminality of Assisting Suicide not Infringing
The court was asked: ‘whether the present state of the law of England and Wales relating to assisting suicide infringes the European Convention on Human Rights, and whether the code published by the Director of Public Prosecutions relating to . .
Cited – T and Another, Regina (on The Application of) v Secretary of State for The Home Department and Another SC 18-Jun-2014
T and JB, asserted that the reference in certificates issued by the state to cautions given to them violated their right to respect for their private life under article 8 of the Convention. T further claims that the obligation cast upon him to . .
Cited – Beghal v Director of Public Prosecutions SC 22-Jul-2015
Questions on Entry must be answered
B was questioned at an airport under Schedule 7 to the 2000 Act, and required to answer questions asked by appropriate officers for the purpose set out. She refused to answer and was convicted of that refusal , contrary to paragraph 18 of that . .
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 – Steinfeld and Keidan, Regina (on The Application of) v Secretary of State for International Development (In Substitution for The Home Secretary and The Education Secretary) SC 27-Jun-2018
The applicants, an heterosexual couple wished to enter into a civil partnership under the 2004 Act, rather than a marriage. They complained that had they been a same sex couple they would have had that choice under the 2013 Act.
‘. . the . .
Cited – The Christian Institute and Others v The Lord Advocate SC 28-Jul-2016
(Scotland) By the 2014 Act, the Scottish Parliament had provided that each child should have a named person to monitor that child’s needs, with information about him or her shared as necessary. The Institute objected that the imposed obligation to . .
Cited – Hesham Ali (Iraq) v Secretary of State for The Home Department SC 16-Nov-2016
The appellant, an Iraqi national had arrived in 2000 as a child, and stayed unlawfully after failure of his asylum claim. He was convicted twice of drugs offences. On release he was considered a low risk of re-offending. He had been in a serious . .
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 – Tigere, Regina (on The Application of) v Secretary of State for Business, Innovation and Skills SC 29-Jul-2015
After increasing university fees, the student loan system was part funded by the government. They introduced limits to the availability of such loans, and a student must have been lawfully ordinarily resident in the UK for three years before the day . .
Cited – Kiarie and Byndloss, Regina (on The Applications of) v Secretary of State for The Home Department SC 14-Jun-2017
The court considered a challenge to the rules governing ‘out of country’ appeals against immigration decisions. They had in each case convictions leading to prison terms for serious drugs related offences.
Held: The appeals were allowed, and . .
Cited – A and B, Regina (on The Application of) v Secretary of State for Health SC 14-Jun-2017
The court was asked: ‘Was it unlawful for the Secretary of State for Health, the respondent, who had power to make provisions for the functioning of the National Health Service in England, to have failed to make a provision which would have enabled . .
Cited – Human Rights Commission for Judicial Review (Northern Ireland : Abortion) SC 7-Jun-2018
The Commission challenged the compatibility of the NI law relating to banning nearly all abortions with Human Rights Law. It now challenged a decision that it did not have standing to bring the case.
Held: (Lady Hale, Lord Kerr and Lord Wilson . .
Lists of cited by and citing cases may be incomplete.
Updated: 26 July 2021; Ref: scu.445396
