Repeatedly described as “a blunt instrument” – in the Court of Appeal and the Supreme Court – immigration rule 277 did more harm than good. The tragedy was that despite the rule constituting a disproportionate interference with Article 8 of the ECHR, it was presented by the authorities as a robust measure to fight the menace of forced marriage.
Following the home secretary and the prime minister’s crusade against Article 8 the UK Supreme Court’s decision is quite a slap in the Cameron government’s face.
The UKSC ruled (4 to 1; see details below) that the government’s denial of marriage visas to Shakira Bibi (a Pakistani) and Diego Quila (a Chilean) infringed Article 8 of the ECHR.
The purpose of the immigration rules is to control immigration. Yet from November 2008 – to paradoxically combat forced marriage through the immigration rules – marriage visas only came to be granted where both the sponsor and the spouse were 21 years of age. (In comparison to 18 years prior to the November 2008 amendment.) An exception for the armed forces, moreover, existed under which the requisite age was set at 18. In the Court of Appeal the inflexibility of the rule – its blanket nature and universal application – was unanimously condemned as its vice. Gross LJ, for example, aptly described arguments favouring the ubiquitous operation of the rigid rule as “a counsel of despair.”
Ultimately the case has come to represent the supremacy of the principles of human rights law which were compromised at the cost of an almost inescapable rule which, contrary to its objective, came to punish people in consensual marriages. Only 4 per cent of the people affected by the rule were involved in a forced marriage whereas 96 per cent of those who suffered separation from their families were in consensual and genuine marriages. In view of this the home secretary’s riposte was essentially one which considered any damage done by the rule to be worthwhile because of its positive effects: both the Court of Appeal and UKSC found this “collateral damage” approach unjustified and disproportionate.
The application of the rule by the home secretary created and brought to light the plight of two couples. In cultural terms the two could not be further apart. What united the “western” couple (Diego Quila and Amber Jeffrey) with the “oriental” one (Shakira Bibi and Suhyal Mohammed) was their common dilemma that rule 277 caused massive problems and disruption in their lives. What set them apart was that the western couple had a “love” marriage whereas the oriental couple’s marriage was “arranged” – but still consensual.
The case had its moments and in one of them Sedley LJ (as he then was) exhorted all sides to take on board “that litigation, even on issues of general importance, is not an open battleground”.
In her lucid article Forced Marriage, Age and Immigration Máiréad Enright made some incisive observations about the way the case was treated in the Court of Appeal. She said that the detail afforded to the western white couple’s predicament was “startling” and, she therefore compared “A-levels, apprenticeships, university places, parental concern, puppy love in Britain, isolation in Chile” in Quila’s case with “the government’s direct and indirect targeting of Muslims” in the debate surrounding forced marriage in Bibi’s case.
Enright concluded that the Court of Appeal’s “erasure” of the oriental couple’s marriage was “disturbing”. While the home secretary’s appeal in the case was doomed right from the outset, the UKSC has tried its level best not to erase Shakira Bibi’s arranged but consensual marriage to Suhyal Mohammed. Just in defence of the Court of Appeal and Sedley LJ, he did base his conclusions on the premise there was “no suggestion that because one of them [the marriages] was contracted in Pakistan it is more suspect than the other.” In any event, since the home secretary unequivocally accepted the genuineness of both marriages the details of Shakira Bibi and Suhyal Mohammed’s marriage became irrelevant.
It would also be fair comment that Amber left the UK to live with her husband in Chile and Ireland and in doing so temporarily quit her life and ambitions at home. Sedley LJ congratulated Diego for behaving responsibly and leaving the UK when the home secretary refused to waive the rule in his favour due to “clear compassionate exceptional circumstances”.
Given the number of people who just overstay their visas without being married or having a partner and still proceed to rely on Article 8 rights, Diego’s honesty cannot be overemphasised. And if it took a publicly kissing champagne toasting British-Chilean western couple for the Court of Appeal or the UKSC to bring justice to the victims of the rule then this shouldn’t really matter. What is certain is that in comparison to human rights and immigration lawyers the victims of the rule will be less obsessed with detail.
In relation to compassionate circumstances both the Court of Appeal and the UKSC rejected the submission on behalf of the home secretary that a wife’s pregnancy and inability to travel would be considered as falling within the meaning of exceptional circumstances because such an approach could end up endorsing forced marriages which were consummated by marital rape: a thing that the home secretary surely could not be seen as promoting. Equally, the rule was obtuse because by delaying sponsorship for a marriage visa by three years it created the possibility of British citizens being forced to marry and live in another country for three years – potentially even 5 years in a country like Pakistan where the minimum age for marriage for girls is 16 – until relocation to the UK became possible.
Some of the points made in Lord Wilson’s lead judgment are that:
- Unconstrained by authority his Lordship would have considered it a colossal interference to require for up to three years either that the spouses should live separately or that a British citizen should leave the UK for up to three years.
- Abdulaziz v United Kingdom (1985) 7 EHRR 471 – where the ECtHR held that there was no lack of respect for family life in denying entry to foreign spouses and that there was no positive obligation on the state to respect a couple’s choice of country of matrimonial residence – should not be followed in this respect because there was dissent at the time. Moreover, no clear and consistent subsequent jurisprudence from the ECtHR has emerged supporting Abdulaziz and four more recent decisions were inconsistent with it.
- The ECtHR has since recognised that the distinction between positive and negative obligations should not generate different outcomes.
- Although rule 277 has a legitimate aim – to protect the rights and freedoms of those who might be forced into marriage – and is rationally connected to that objective, its efficacy is highly debatable.
- On any view, the measure was a sledgehammer but the home secretary has not attempted to identify the size of the nut.
Moreover for Lady Hale:
- The debate on Abdulaziz is something of a red herring as the home secretary could not simultaneously state that the measure was not for the purpose of controlling immigration and rely upon jurisprudence wholly premised on the state’s right to control immigration.
- The restriction was automatic and indiscriminate because it failed to detect forced marriages and imposed a delay on cohabitation in the country of choice, which was a deterrent that could impair the essence of the right to marry under Article 12 ECHR.
- It remained difficult to see how the home secretary could avoid infringing Article 8 whenever she applied the rule to an unforced marriage.
Lord Brown was the sole dissenting judge as Lord Phillips and Lord Clarke agreed with Lord Wilson and Lady Hale. Lord Brown’s decision was connected to:
- The inability to quantify forced marriage which meant the true detrimental effect of rule 277 went undetermined to his satisfaction.
- The exercise of achieving balance between the suffering caused by forced marriage was for elected politicians (and not judges) to decide.
- The possibility that the rule could be disapplied in exceptional circumstances.
- Having common ground with European countries which apply similar rules.
- Not frustrating governmental policy in all but the clearest cases (and surely Bibi and Quila both qualify under this head).