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Anti-sham marriages rules illegal

16 December 2010

The government’s sham marriage deterrent breached human rights by charging a fee to immigrants who opted for a non-Church of England service.

Citing “a number of grave concerns”, the European Court of Human Rights (ECtHR) has ruled that the scheme operated on a foundation of religious discrimination while failing to actually detect any sham marriages.

Welcoming the ruling, John Wadham, legal director for the Equality and Human Rights Commission, which was an intervener in the case, said: “It is unfair for the state to apply one rule to one specific faith, but a different rule to all others. The government’s scheme has prevented genuine couples from marrying and has done little, if anything, to tackle the problem of sham marriages.”

The ruling in O’Donoghue v UK (application no 34848/070), is expected to give hundreds of immigrants the opportunity to marry after their weddings were put on hold pending the judgment. The applicants included a Nigerian national subject to immigration control and his Irish wife, both catholics, who were forced to pay £295 in 2006 for a “certificate of approval” before they could have permission to marry in the UK.

Following legal challenges lodged by the couple, the government changed the qualifications for the certificate twice. But the ECtHR has held that in all phases of the legislation “the very essence of the applicants’ right to marry was impaired”.

It gave three reasons for the breach of article 12: that only applicants with “sufficient” leave to remain were entitled to marriage, that payment was required and that there was no investigation “of genuineness” of the marriage involved in the scheme.

Hearing the case in the House of Lords in 2008, Lord Bingham said: “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.

“The scheme imposes a blanket prohibition on exercise of the right to marry by all in the specified categories, irrespective of whether their proposed marriages are marriages of convenience or whether they are not. This is a disproportionate interference with exercise of the right to marry.”

Upholding Lord Bingham’s conclusions, the ECtHR ruled that, although it was not in breach of article 12 to impose “reasonable conditions” to deter sham marriages, in this case the conditions were discriminatory and did not have any material benefit on preventing marriages purely for immigration’s sake.

The ECtHR president Lech Garlicki ruled that both article 12, the right to marry, and article 14, prohibition of discrimination, had been breached by the scheme, stating: “There is no justification whatsoever for imposing a blanket prohibition on the right of persons falling within these [immigration] categories to exercise their right to marry.

“Even if there was evidence to suggest that persons falling within these categories were more likely to enter into marriages of convenience for immigration purposes… the court finds that a blanket prohibition, without any attempt being made to investigate the genuineness of the proposed marriages, restricted the right to marry to such an extent that the very essence of the right was impaired.”

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