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Solicitors back Supreme Court's rejection of immigration rule

Age limit 'about immigration, not about forced marriages'

17 October 2011

Solicitors have welcomed the Supreme Court’s rejection of an immigration rule banning the entry of foreign spouses from non-EU countries who are under the age of 21.

The age limit was raised from 18 to 21 in 2008 in what the Home Office claimed was an attempt to prevent forced marriages. The Supreme Court was not convinced and held that the rule breached article 8 of the ECHR.

Damian Green, immigration minister, said the Supreme Court had produced “another very disappointing judgment” and its decision would put young people at risk of being forced into marriage.

Cris McCurley, head of the family law department at Ben Hoare Bell in Newcastle, said the age limit did not help the problem of forced marriages and was discriminatory.

“This is about immigration, immigration from certain parts of the world and not about forced marriages,” McCurley said.

She admitted that the rule was a “well-meaning gesture”, which she originally thought was a good idea until young women told her that it would lead to girls below the age of 21 being taken from the UK to foreign countries, married off and left there until they were old enough.

“This is another example of the government not listening to consultation responses, which warned very clearly that this would be the outcome.”

Aina Khan, senior consultant and head of Islamic legal services at Russell Jones & Walker, said the age limit of 21 was a “red herring” which did not deal with the real issue.

Instead she called for forced marriages to be criminalised immediately (see below). “Let’s go full throttle, get it criminalised and have an education campaign.”

Giving the leading judgment in the cases R (on the application of Quila) v the Home Secretary and R (on the application of Bibi) v the Home Secretary [2011] UKSC 45, Lord Wilson said the number of forced marriages which the rule deterred was “highly debatable”.

He went on: “What seems clear is that the number of unforced marriages which it obstructs from their intended development for up to three years vastly exceeds the number of forced marriages which it deters.

“Neither in the material which she published prior to the introduction of the amendment in 2008 nor in her evidence in these proceedings has the secretary of state addressed this imbalance – still less sought to identify the scale of it.”

Lord Wilson said the home secretary had failed to establish that the amendment was no more than necessary to accomplish her objective or that it struck a fair balance between the rights of the parties to unforced marriages and the interests of the community in preventing forced marriages.

“On any view it is a sledgehammer but she has not attempted to identify the size of the nut,” Lord Wilson said.

“At all events she fails to establish that the interference with the rights of the respondents under article 8 is justified.”

Lord Wilson dismissed the home secretary’s appeal. Lords Phillips and Lord Clarke agreed that, by refusing to grant marriage visas to the claimant couples, the home secretary had violated their rights under article 8.

Lady Hale agreed for her own reasons. Lord Brown dissented. He described forced marriages as an “appalling evil” which all too often occurred within the immigrant community.

“The extent to which the rule will help combat forced marriage and the countervailing extent to which it will disrupt the lives of innocent couples adversely affected by it is largely a matter of judgment,” Lord Brown said.

“Unless demonstrably wrong, this judgment should be rather for government than for the courts.”

Lord Brown said article 8 was a “difficult provision” which had already led to some “highly contentious, not to say debatable, decisions”.

He went on: “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.

“To my mind this cannot possibly be regarded as such a case. I would allow these appeals.”

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Marriage & Civil partnership Divorce Local government