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Supreme Court overturns immigration age limit

12 October 2011

The Supreme Court has this morning overturned 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.

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.

“Even had it been correct to say that the scale of the imbalance was a matter of judgement for the secretary of state rather than for the courts, it is not a judgement which, on the evidence before the court, she has ever made.”

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.

“Still more obviously, the comparison between the enormity of suffering within forced marriages on the one hand and the disruption to innocent couples within the 18-21 age group whose desire to live together in this country is temporarily thwarted by the rule change, is essentially one for elected politicians, not for judges.”

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