Secretary of State for the Home Department v Baiai & Ors

These appeals raise important questions as to the compatibility with the European Convention on Human Rights [ECHR] of primary and secondary legislation requiring certain persons who are subject to immigration control to secure the permission of the Secretary of State before they marry. The Secretary of State’s object in promoting the legislation is to prevent the persons to whom it applies from entering into marriages of convenience (a concept that will have to be further explored), in the interests of disabling such persons from obtaining advantages in the immigration process because of their married state.

I will refer to the legislation taken as a whole as “the scheme”. How in detail it works is set out in §§ 2-16 of the judgment below of Silber J, [2007] 1 WLR 693, which I would respectfully commend to anyone who needs further enlightenment than I have judged it necessary to provide in order to explain the particular issues that arise on these appeals. By way of summary, the scheme applies to any person subject to immigration control (that is, a person who is not an EEA national, and who requires leave to enter or remain in the United Kingdom under the Immigration Act 1971). The only persons subject to immigration control who are outside the scheme are those who are “settled” in the United Kingdom: see §15 of the first judgment of Silber J, and § 9(ii) below. Other than settled persons, persons subject to immigration control, if they wish to marry in the United Kingdom, can only do so if the Secretary of State provides them with a Certificate of Approval [COA]. The Secretary of State’s current policy, which is in issue in these appeals, is to refuse a COA to anyone who does not have a valid right to enter or remain in the United Kingdom for more than six months, and with more than three months of that period outstanding. Absent a COA, and still wishing to marry, such a person has to leave the United Kingdom, and either marry abroad or apply from abroad for entry clearance in order to marry here. The exceptions to this policy are where the applicant’s initial application for immigration status, or an appeal in that connexion, has been outstanding for more than 18 months; or if there are compelling compassionate circumstances that make it unreasonable to expect the couple to travel and marry abroad. A further exception, found in the statutory foundation of the regime, section 19 of Asylum and Immigration (Treatment of Claimants, etc) Act 2004, is that the scheme does not apply at all to persons whose marriage is solemnised according to the rites of the Anglican Church under Part II of the Marriage Act 1949.

The various claimants complained that the scheme is inconsistent with article 12 of the ECHR (right to marry), and also, because of the exemption for Anglican marriages, with article 14 (discrimination). Ms Trzcinska, a citizen of the Republic of Poland, and Mr Baiai, a citizen of the Republic of Algeria who is illegally in this country who wishes to marry Ms Trzcinska here, also raised specific issues based on her status as a citizen of the European Union. It was agreed below that the judge would not pass on that part of the case, the claimants being at liberty to restore the issue to him if so advised. They have not taken that step, and we declined an invitation to reopen those issues ourselves.

Silber J delivered three judgments in the course of his enquiry. The first judgment, [2007] 1 WLR 693, addressed the general status of the scheme. The judge held, first, that section 19 of the 2004 Act was incompatible with articles 12 and 14 because the exclusion from the scheme of marriages according to Anglican rites disproportionately discriminated on grounds of nationality and religion against persons who were unwilling or unable to benefit from that exception. Second, the judge held that the scheme itself was a disproportionate interference with the article 12 rights of the persons to whom it applied. For completeness, I should add that the judge also found to be discriminatory the fee of £135 charged for a COA, persons entering an Anglican marriage not having to pay that fee. It was not suggested before us that the fee raised any separate issue.

The judge’s second judgment related to damages claims arising out of the first judgment. No issue arises before us in that respect, and we have not been shown the second judgment. However, in the course of argument in relation to the damages issue it became apparent that the voluminous lists of issues agreed by counsel in the first proceedings had not addressed an issue that the Secretary of State said that he wished to be determined, and as a matter of urgency, namely whether, notwithstanding the conclusions of the first judgment, the Secretary of State was still entitled to refuse a COA to someone such as Mr Baiai, who is not only a person subject to immigration control, but also a specifically “illegal” immigrant: that is, he has no valid leave, not even a temporary leave, to enter or remain in the United Kingdom. The judge was told that because of other commitments of counsel who had argued the case so far an oral hearing within a practicable measure of time would not be possible. He therefore agreed to resolve the matter on the basis of written submissions only. I do not criticise the judge for taking that course, not least because he was seeking to assist the parties in circumstances of which I am not fully aware, but I share his disquiet, set out at [2007] 1 WLR 735 §§ 75-76, at this turn of events. In that, the third judgment, the judge determined that the Secretary of State had been entitled to refuse a COA to Mr Baiai without infringing his rights under the ECHR.

In the first appeal, C4/2006/1469, the Secretary of State appeals against the judge’s conclusion in the first judgment that the Secretary of State’s policy with regard to the issue of COAs, as summarised in §2 above, is unlawful as being inconsistent with both article 12 and article 14 of the ECHR. In his original written submissions to this court the Secretary of State also sought to appeal against the judge’s declaration that section 19 of the 2004 Act, the source of the exemption for Anglican marriages, was incompatible with article 14, contending that the machinery of Anglican marriage contained safeguards, absent elsewhere, against its use for marriages of convenience. However, before the appeal opened the Secretary of State told us that he no longer sought to appeal that part of the judge’s order, and that legislation would be passed in due course to remove the discriminatory aspects of the present scheme. The Secretary of State was not, however, able to tell us what exact aspects of the scheme he accepted to be discriminatory, nor what exact steps he would be taking to rectify that breach of the law. We explained to Miss Carss-Frisk QC, for the Secretary of State, that we would have to adjudicate on the extant appeals on the basis of the whole scheme as it stood before Silber J, and indeed as it still stands. That was initially thought to cause some potential difficulty, since the discriminatory nature of the scheme was a significant factor in leading the judge to his conclusion that the scheme is objectionable under article 12 as well as under article 14. However, as argument progressed it became clear, as I explain in §39 below, that there are other and dispositive objections to the scheme in the context of article 12 that do not depend on the discriminatory elements found by the judge.

In the second appeal, C4/2006/1621, Mr Baiai and Ms Trzcinska appeal against the judge’s conclusion in the third judgment. The Joint Council for the Welfare of Immigrants (represented by Mr Drabble QC and Mr Fripp, whom we thank for their pro bono contribution both here and below) intervenes to support the respondents in the first appeal and the appellants in the second appeal.

The arguments before us ranged widely, and into some uncharted waters in terms both of the law and of the facts. In order to bring some order to the case I cannot avoid dealing with a range of preliminary issues. I address only those matters necessary for an understanding of my conclusions. As I have already said, a more general account of the case can be found in the full judgments delivered by Silber J.

Although we are concerned principally with the general nature of the scheme, we have also to consider the particular position of the various claimants; and, in addition, the effect upon them of the application of the scheme can be used to illustrate its general reach and purpose. It will be convenient at this stage to bear in mind that the Secretary of State is particularly concerned about marriages by persons subject to immigration control to two classes of other person. Those classes are as follows:

The history and position of the various claimants can now be set out. Fuller details if required can be found in §§ 17-29 of the first judgment.

The Secretary of State produced evidence to demonstrate his reasons for adopting the scheme, and the justification for it. That evidence fell into two categories: the advantages obtained by persons subject to immigration control if they entered into the married state; and the high incidence of marriages of convenience amongst the category of persons subject to immigration control that is targeted by the scheme; namely, as already set out, persons with less than six months leave to remain in the United Kingdom, and with less than three months of that leave remaining at the time of their application. I deal with those two aspects of the problem in turn.

Evidence explaining this part of the Secretary of State’s policy was given by Miss Alison Bennett, an assistant director in the immigration and nationality department of the Home Office. The judge set out a substantial account of that evidence in §§ 65-70 of his first judgment. He explained that what are now the 2006 Regulations contain provisions which allow non-EEA nationals to remain in the United Kingdom on the basis of their marriage to British citizens, persons settled in the United Kingdom and EEA nationals. Upon marriage, a non-EEA spouse of an EEA national has a right of residence in the United Kingdom if the EEA national is exercising treaty rights in the United Kingdom and is entitled to a five-year residence document. The judge continued:

We will have to return to some aspects of that evidence. At this stage, two points may be made. First, the marriages that are said to confer immigration advantages are principally those contracted by persons subject to immigration control either with EEA nationals (as Mr Baiai seeks to do) or with persons settled in the United Kingdom (as Ms Tilki seeks to do). The only way in which it is suggested that an immigration advantage can follow from a marriage between two persons neither of whom fall into either of those categories (such as would be the marriage between Mr Bigoku and Ms Agolli) is that the married state might be used as the basis of a claim to resist deportation in the interests of the protection of family life, under article 8 of the ECHR. Second, it is accepted that the rules on the position of dependants of EEA nationals have built into them an exclusion of marriages of convenience. That is so both in the 2006 Regulations and in Directive 2004/38 on the position of EEA nationals which the Regulations implement. However, it is the evidence of the Secretary of State, quoted above from Miss Bennett, that that exception is theoretical only because of the practical difficulty of detecting sham marriages after they have been entered into and (Miss Carss-Frisk assured us it was also intended to say) before they were entered into. We will have to return to that issue.

Here again, the Secretary of State produced substantial evidence, which was directed at two elements in his policy. First, as to the problem of “sham” marriages in general. Second, as to the relevance in the immigration context of the policy of the scheme to target marriages entered into by persons with only a short-term leave to remain in this country. The combination of that evidence is to argue that the latter category accounts for a high proportion of all sham marriages, the implication being that those marriages are entered into to improve the person’s immigration status; and that the policy of deterrence of such marriages is necessary to prevent abuse of the immigration system.

The first part of this evidence was provided in evidence by or obtained from officials responsible for the conduct of civil marriages. The judge set it out in the following terms in §71 of his first judgment:

Second, Mr Ian Robinson, the family policy adviser at the Home Office, gave evidence that the majority of sham marriages involve persons who are in the United Kingdom illegally or on a short-term basis. In §2 of his witness statement Mr Robinson said this:

The marriage provisions were introduced in the light of growing evidence of an increase in the number of marriages taking place where the purpose is to circumvent immigration control (these are referred to by the Home Office, including by me in this Witness Statement, as “sham marriages”, regardless of whether or not the parties actually intend to live together as man and wife). Reports from Registrars and other intelligence sources suggested that the majority of these marriages involve people who are in the United Kingdom illegally or on a short term basis.

This evidence was of necessity, in the absence of any investigation of individual cases, in general terms. The judge was no doubt nonetheless right to conclude in §73 of his first judgment that the evidence demonstrates a disturbing problem. However, for the moment we may note that within the target group identified in the policy and by Mr Robinson, persons in the United Kingdom illegally or with only short-term permission, it is not known how many of the marriages sought to be contracted by such persons are in fact “sham” according to the Secretary of State’s definition; nor how many of their marriages, genuine or sham, are with persons falling into the categories set out in §9 above, marriage with whom is thought to give a particular advantage in immigration terms.

Article 12 of the ECHR reads:

Men and women of marriageable age have the right to marry and found a family, according to the national laws governing the exercise of this right

The reference to founding a family is no doubt explained by memories, recent when the ECHR was formulated, of experiments in eugenics. That has mercifully not troubled the Convention countries since 1950, and does not arise in this case. And as the present case revealed, jurisprudence on the reach and status of article 12 as applied to the right to marriage is comparatively limited, only one of the cases put before us having been decided by the ECtHR, as opposed to the former Commission.

The controversy in the present case concerns the extent to which states may interfere with the right to marriage in the pursuit of what are recognized to be proper social goals, in particular immigration control. The solution can be drawn from two sources, the bare wording of article 12; and the latitude that the article permits to member states in terms of proportionality. I take those two arguments in turn.

In an early case concerning the right of a serving prisoner to marry, Hamer v United Kingdom (1979) 4 EHRR 139, the Commission, in §§ 60 and 62 of its ruling explained the status of national laws in the context of article 12 in these terms:

It may seem fairly clear from these authorities that the concluding words of article 12, referring to “national laws governing the exercise of [the article 12] right”, do not give states a licence to intervene in marriages in the pursuit of other social goals, but simply relate, as the Commission said in Hamer, to national laws promoting the institution of marriage, such as rules relating to bigamy or consanguinity. That view can be supported from the only case before the ECtHR, F v Switzerland (1987) 10 EHRR 411. A Swiss law placed limitations on the remarriage of someone who had been the guilty party in previous divorce proceedings. The ECtHR recognized that the national law sought to promote stability in marriage, but held at its §40 that

the disputed measure, which affected the very essence of the right to marry, was disproportionate to the legitimate aim pursued

Thus far, therefore, the jurisprudence does not support the original argument of the Secretary of State that the last eleven words of article 12 gives the state power to limit the article 12 right for public interest reasons: see §§ 50 and 61 of the first judgment. By the same token, however, the jurisprudence does not support the original argument of the claimants that the article 12 right is “absolute” in its nature. That contention, not in the end fully persisted in, sought to put article 12 on the same plane as articles 2 and 3, which confer rights that the member state must respect above all other considerations. That article 12 is not of that nature is shown by the approach of the ECtHR in F v Switzerland, which criticized the national legislation on grounds of lack of proportionality, and not per se because it interfered with the basic article 12 right. And that the national state has at least some freedom of action in relation to article 12 rights is further demonstrated by a number of Commission cases relied on by the Secretary of State, to which I now turn.

These cases were explored before us in more detail than appears to have been the case before the judge. The cases are not in every respect easy to construe, and as Commission decisions some of them appear to have been only partially reported, at least in the versions shown to us. Nonetheless, they must be taken very seriously, not least because they are all concerned with the interaction between immigration rights and article 12. I set the cases out chronologically in the first instance.

In App No 9773/82 v United Kingdom (1982) 5 EHRR 296 a United Kingdom resident, whose sole source of income was an invalidity pension and supplementary benefit, sought entry clearance with a view to marriage for his Filipina fiancé with whom he had corresponded but had never met. Permission was refused under a provision in the Immigration Rules that permitted entry in order to marry only in cases where no extra burden would be placed on public funds. The Commission pointed out that the article 12 right does not, in principle, include the right to choose the geographical location of the marriage, and that the requirement of ability to survive without assistance from public funds was not unreasonably discriminatory under article 14. Moreover, whilst that criterion did not apply to dependent existing spouses, “it cannot be overlooked that the applicant is seeking to establish a new relationship with a foreign person whom he has never actually met”. The complaint under articles 8, 12 and 14 was manifestly ill-founded.

In App No 10914/84 v The Netherlands (1986) 8 EHRR 308 it was proposed to expel from the Netherlands an alien with temporary residence rights, on the ground that the basis of those rights had ceased to exist. He sought unsuccessfully to resist that expulsion on the basis of his prospective marriage to a Dutch citizen. A claim that by preventing them from marrying in the Netherlands under Dutch law the Dutch authorities had interfered with the couple’s article 12 rights was dismissed as manifestly ill-founded, the Commission again noting that article 12 does not guarantee the right to marry in a particular country, or under a particular legal system.

In Application 31401/96 Sanders v France (1996) 87 B-DR 160 the applicants, a male Turkish national and a female French national, living together in Istanbul, complained of delays in obtaining a certificate of capacity to marry under French law. The main part of the report suggests that the issue as to the obtaining of a certificate related to (alleged) concerns about the prospective wife’s mental capacity to marry, under section 175 of the French Civil Code. However, in addressing the complaint under article 12 the Commission, having noted F v Switzerland in the terms reported in §21 above, went on to say:

The Commission notes that, in the present case, the issue concerns substantive rules, the purpose of which is, inter alia, to preclude marriages of convenience between French citizens and aliens. It does not find this limitation, in itself, [scil., per se] to be contrary to Article 12 of the Convention.

Although one could wish that the matter were before us more fully, that is a fairly clear acknowledgment, albeit in general terms, that the relativist approach to article 12 left open in F v Switzerland can extend to the limitation of some marriages or alleged marriages in the interests of immigration control.

In Klip and Kruger v Netherlands (1997) 91-A DR 66 the applicants complained that article 12 rights were infringed because a Dutch Act on prevention and suppression of marriages of convenience required a systematic examination of all intended marriages involving aliens. This required the parties covered by the legislation to provide statements, which could lead the public prosecutor to oppose a marriage if the primary purpose of one or both of the parties wishing to get married was to obtain entry into the Netherlands. The Commission rejected the complaint as manifestly ill-founded, saying that

This again is a clear recognition that some limitations may be put on the right to marry in the interests of immigration control. The complaint in Klip was limited to the requirement of prior scrutiny, but that requirement was justified on the basis that it might lead to a legitimate prevention of the marriage.

I would draw the following conclusions from the jurisprudence on article 12:

The judge, at §60 of the first judgment, considered this question under the heading “What deference should be shown by a court to a decision of the executive or of the legislature in respect of policy affecting article 12 rights?” The discussion in terms of “deference”, eagerly adopted by the Secretary of State, was perhaps unfortunate, but the essence of issue was nonetheless clear: whether the article 12 right is of a nature that invites control by the courts, or whether on the other hand it engages matters of social policy in which the legislature and the executive, rather than the courts, are expert.

The judge’s conclusion on that issue was as set out in §63 of the first judgment:

The point of departure of this analysis may have been common ground, but I cannot agree with the conclusion at which it arrived. First, neither in its terms nor in its jurisprudence is article 12 relativist in the same way as is article 8. The judge was not assisted by the argument, wrongly based on what was said about the last words of article 12 in Hamer, that the article contains within it a general power to derogate from its terms on grounds of public interest, in the manner of article 8(2): as to that argument, see §21 above. Second, whatever may have been the intention of its framers, article 8 now extends to such a variety of situations, as disparate as the right of an accountant not to have his office searched (Niemitz v Germany (1993) 16 EHRR 241) or a dispute between a public figure and the magazine that takes pictures of her (Von Hannover v Germany (2005) 40 EHRR 1), that it is difficult or impossible to extract from it any general principle that can simply be transported into the jurisprudence of a different article such as article 12, which is directed at a specific and limited social situation. Third, just because article 12, and article 8 in some but not all of its many aspects, both concern family life, it does not follow that article 12 takes on the qualities that were perceived in article 8 at least in Samaroo. Whilst it is not on the same plane as the rights to liberty, freedom of expression and access to the courts, the right to marry is regarded in the jurisprudence as a significant and fundamental right, of the sort that the courts must be vigilant to protect: see § 29(i) above.

Nor can I agree with what Silber J drew, in §97 of the first judgment, from the guidance of Lord Nicholls of Birkenhead in Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816. Speaking in §70 of his speech of the reviewing role of the courts Lord Nicholls said:

The judge accorded too much freedom of action to the Secretary of State in formulating a scheme that interferes with the article 12 right, albeit in pursuit of an objective that it is legitimate for the national state to see as requiring some such interference. Whether the scheme selected and its implementation is proportionate to the end sought is an issue that demands the court’s attention. In making the assessment that the law demands, the importance of the article 12 right, and the limited extent to which member states have been permitted to derogate from it, must be clearly borne in mind.

First, however, we must consider the answer that the judge gave to the question of whether the scheme before him was proportionate to its aim.

Although I have ventured to differ from some of the judge’s conclusions as to the implications of article 12, I have with equal respect found very helpful his observations about the demands of proportionality in this case. In §43 of his first judgment the judge cited the guidance given by Lord Steyn in R(Daly) v SSHD [2001] 2 AC 532[27], requiring the court to consider whether:

(i)

the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objectives are rationally connected to it; and (iii) the means used to impairthe right or freedom are no more than is necessary to accomplish the objective.

Within that guidance, under item (i) the judge concluded, at §73 of the first judgment, that the legislative object of preventing sham marriages entered into so as to avoid immigration control was sufficiently important to justify limiting the article 12 right. I would respectfully agree, and the jurisprudence of article 12, summarised in §29 above, justifies a statement in those general terms; though for the reasons set out above I consider that that jurisprudence only supports a more limited interference with the article 12 right than the judge may have envisaged.

The judge then treated separately items (ii) and (iii) of Lord Steyn’s formulation, as indeed the terms of that formulation would seem to require. Put shortly, he concluded under item (ii) that the scheme is not “rationally connected” to its legislative aims. He accordingly did not think it necessary to reach any final conclusion as to item (iii), though he analysed the point at some length and made some, with respect, valuable observations in relation to it. However, reading the whole of the judge’s treatment, in §§ 74-105 of the first judgment, it is clear that many of the issues overlap between Lord Steyn’s items (ii) and (iii). Miss Carss-Frisk suggested that the case could be reduced to a single issue, formulated in terms of whether the scheme struck a fair balance, and I would be content to approach it in that way. First, however, I must address the judge’s analysis of item (ii), on the basis of which he held the scheme to fail on grounds of proportionality.

In §§ 74-89 of his first judgment the judge set out a range of factors that, as he put it in his §76, “individually or cumulatively lead me to the conclusion that the section 19 regime is not rationally connected to the legislative objective”. Those were, in summary, that the regime: (i) regards all marriages by a person who requires a COA as automatically actually or potentially marriages of convenience; (ii) discriminates irrationally in favour of Anglican marriages conducted under Part II of the 1949 Act; (iii) fails to take account of evidence, if available, that a particular marriage is not a sham; (iv) makes his immigration status the only factor affecting whether a non-EEA national can marry in this country; (v) does not allow representations by persons affected by the scheme. As I have explained in §6 above, the Secretary of State does not now seek to challenge the judge’s conclusion that the scheme is discriminatory, and does not appeal his declaration of incompatibility with article 14; but for other purposes, including the compatibility of the scheme with article 12, we have to proceed with the Anglican exemption still in place.

That does not, however, make the judge’s conclusion, or any support for it on the part of this court, academic. Although the judge rightly expressed serious concern about the Anglican exemption, and in particular about the failure of the Secretary of State to address any of the evidence adduced about the integrity of marriages conducted by other religious faiths, the Anglican exemption is essentially a footnote to the scheme as a whole. All that it does is to remove from the scheme what one would think to be a very small number of marriages, those where the authorities of the Anglican church regard both of the parties as qualified for a Part II marriage: a category that by no means includes even all of the practising members of the Anglican church itself. The presence of the exemption makes the scheme discriminatory against everyone who is excluded from Anglican marriage, but the exemption, and therefore the discrimination, could be simply removed without making any difference at all to the other aspects of the scheme that the judge found to be objectionable.

It is clear from a fair reading of the judge’s account that he did not regard the discriminatory nature of the scheme as crucial to his conclusion in respect of article 12, even though he did describe it, in §44 of the second judgment, as probably the most important reason for the decision in his first judgment. We can therefore fairly address the remainder of the judge’s reasoning without further reference to the discrimination issue.

As we have seen, the judge, following Lord Steyn, addressed this issue in terms of whether the scheme was rationally connected to its expressed objective of avoiding sham marriages in the interests of immigration control. Miss Carss-Frisk argued that reasons (iii)-(v), summarised in §38 above, added nothing to reason (i), and that reason (i) was wrong. The only marriages that the scheme made automatically vulnerable in terms of sham were those that fell into the targeted category, and the evidence, in particular that of Mr Robinson set out in §16 above, showed or at least strongly suggested that marriages in that category did include a large proportion of shams. And to the extent that the scheme inhibited a number of genuine marriages, to quote Miss Carss-Frisk’s skeleton in this court “It is open to Parliament to decide that a particular approach is necessary to deal with the mischief in question, even if it may to some extent affect the blameless as well as the guilty”. I deal with those objections in turn.

First, the judge was very well aware that he had to address the category of marriages that is actually interfered with by the COA scheme. That is clear from his citation, in §76 of the first judgment, of the criticism of the (then proposed) scheme in the fourteenth report of the Parliamentary Joint Committee on Human Rights:

The judge reached his conclusion, that the scheme unreasonably failed to pay attention to the circumstances of individual cases, having borne well in mind what he described as the virtual impossibility of devising a scheme which does not affect more people than is absolutely necessary, and “the substantial degree of deference which has to be accorded by the court to the legislature and the executive”: see §89 of the first judgment. But he concluded that even taking those matters into account the scheme that he was asked to endorse strayed too far from the objective that was said to justify it. The judge might have gone on to say that, whilst immigration control is accepted to be a legitimate ground for interfering with the article 12 right, all that that does is to open the possibility of some limitations on the article 12 right. It does not mean that the state is free to choose whatsoever means of controlling immigration that it considers prudent or necessary, irrespective of the impact on article 12. And those considerations apply a fortiori if, as I have suggested above, the state’s ability to derogate from article 12 is a good deal narrower than the judge thought it to be.

Second, the judge was particularly concerned that, granted the difficulty of formulating any scheme at all, “the new regime suffers from the serious defects that it affects the article 12 rights of substantially very many more people than would be necessary to achieve the legislative purpose of preventing sham marriages”: first judgment, §89. The judge did not say, and was not able to say, how many or what proportion of such people were affected, but that is not a criticism that lies in the mouth of the Secretary of State (and indeed is not made by him), because as the account of his evidence given above indicates the Secretary of State has only very partial knowledge of the extent of the problem, and no reliable figures, indeed no figures at all, as to how many genuine marriages, or marriages not conferring an immigration advantage, fall within the target category for which COAs will be automatically refused. The Secretary of State had two answers to the latter objection. First, as we have seen in §41 above, that it was open to Parliament to introduce a scheme that was necessary to inhibit a legitimate source of concern even if in the process other and unobjectionable cases were caught. Second, that those who require but do not qualify for a COA are not prevented from marrying, but are required to return home and either marry there or apply for entry clearance to marry in the United Kingdom, it being borne in mind that article 12 does not create a right to marry in any particular country: see § 29(iv) above.

The first of these contentions rested heavily on some observations of Lord Nicholls of Birkenhead in Wilson, at §73:

I have no difficulty in accepting that in suitable instances it is open to Parliament, when Parliament considers the public interest so requires, to decide that compliance with certain formalities is an essential prerequisite to enforcement of certain types of agreements. This course is open to Parliament even though this will sometimes yield a seemingly unreasonable result in a particular case. Considered overall, this course may well be a proportionate response in practice to a perceived social problem.

But Lord Nicholls was there saying that a scheme whose objective was to secure the Convention rights of borrowers should not be unshipped just because it affected some moneylenders whose conduct was not objectionable in Convention terms. Quite apart from the considerable difference in terms of social justice and policy between the position of a moneylender and the position of a person who wishes to enter into a genuine marriage, it puts the argument the wrong way round simply to adapt Lord Nicholls’ words to the present case. Under the Secretary of State’s scheme it is persons who legitimately assert Convention rights who are prevented by the broad brush terms of the scheme from exercising those rights; and not, as in Wilson, third parties who must suffer in order to secure the exercise of Convention rights by others. Once it is seen that the scheme inhibits the article 12 rights of persons who are not the legitimate target, in Convention terms, of any restriction of Convention rights, then the judge’s criticism of the scheme is unavoidable.

The claim that the scheme is legitimate (whether directed at sham or at genuine marriages) because it relies on the absence of an article 12 right to marry in a particular country has to be seen in context. The Convention rights are available to anyone who is actually present in this country, whether on a short-term basis or even illegitimately. The wish to marry, and certainly the wish to contract a genuine marriage, springs from and has to be seen in the context of that presence. While in theory a requirement that one or both of the parties leave the country, with the object of returning married or to be married, does not prevent the intended marriage from taking place, the reality is very different. First, it seems unreasonable to require a person such as Ms Tilki to give up such immigration status as she has just because she wants to get married. Second, the process of applying for entry clearance from abroad is at best cumbersome, and in practice a very strong deterrent to exercising marriage rights. The judge’s account in §72 of his second judgment may be cited:

It is important to stress the very far-reaching adverse consequences for a person who requires a COA but does not receive it especially those who are caught by the provision for automatic refusal. The expectation for this group of people is that either the couple should travel abroad and marry, and then for the partner requiring entry clearance to obtain this from abroad on the basis of his or her marriage; or for the individual requiring entry clearance to travel abroad (with or without his or her fiancée) to obtain entry clearance, from abroad, on the basis of his intended marriage in the UK. The compassionate circumstances may be seen to be applicable where neither expectation is reasonable. Those of us who sit in the Administrative Court for long periods are now very familiar with the delays in the immigration system which are now likely to lead to very substantial delays in handling and resolving applications to enter the United Kingdom from those who have gone abroad to marry.

Like the judge, I cannot accept that this degree of interference with an intended marriage in this country between two persons located in this country does not engage their article 12 rights. Nor do I think that a regime that imposes a burden of that order in every case, with savings only in exceptionally compassionate circumstances, is at all what the European Commission had in mind when it said in the context of two particular cases that article 12 gives no right to marry in a particular country.

For the reasons that I have set out, I consider that the judge was right to hold that the scheme fails the test of proportionality, and for the reasons that he gave. In the course of argument before us some further considerations emerged which fortify that conclusion, and which I describe in the next following section. Some part of this material is drawn from the judge’s valuable discussion in §§ 91-105 of the first judgment of whether the scheme was necessary to accomplish the objective of immigration control, albeit that he came to no concluded view on that question.

The judge broadly accepted the submissions of the Secretary of State as to the immigration advantages to be obtained on marriage by persons subject to immigration control: see §§ 12-13 above. Some of those contentions, and the arguments based on them, need further consideration.

First, the position of persons subject to immigration control who seek to marry persons who are neither EEA nationals nor settled in the United Kingdom (see §9 above). The only advantage suggested to flow from such a marriage is that a person might seek to base an article 8 claim on the fact of marriage. But it is trite law, for instance as stated by Lord Phillips of Worth Matravers MR in paragraph 55(5) of his judgment in R(Mahmood) v The Home Secretary [2001] 1 WLR 840, that an article 8 claim is unlikely to inhibit the enforcement of immigration law if the claim is based on a relationship entered into when the party knew that his immigration status was precarious: which by definition will be the case if a person falling within the Secretary of State’s target group gets married. We have such a case before us, in the shape of Mr Bigoku and Ms Agolli. There is no good reason, in terms of the enforcement of immigration control, for preventing the marriage of them or of anyone else in their position. That the scheme extends to an unknown number of such irrelevant cases is a further reason why it is disproportionate to the object that is relied on to justify it.

Second, as to marriages with settled persons (see §9(ii) above), there was before the judge, and set out by him in §§ 101-102 of the first judgment, substantial evidence as to the procedure required to be followed when a person subject to immigration control applies for an extension of stay in the United Kingdom on the basis of marriage. That requires the completion of a detailed form setting out matters relevant to the stability and genuineness of the relationship. That differs significantly from the information required on the COA form but, as the judge pointed out in his §102, that is because the COA scheme does not turn at all on the genuineness of the marriage, but only on the applicant’s immigration status, together with any compassionate circumstances.

The Secretary of State’s evidence, in §31 of Miss Bennett’s statement, said of some 32,000 such applications made each year on the basis of marriage to a settled person, only about 8 per cent are refused. Miss Bennett pointed out that resources were not available to interview both parties to an application, thus perhaps implying, though not saying, that more than 8 per cent of the applications are bogus. However, no explanation was given of why the detailed factual account required of the parties, under pain of considerable sanctions if lies are told, was not seen as effective, or indeed why it was required if it was thought not to be effective; nor of why such enquiries would not be a proportionate basis for limiting article 12 rights in the interests of immigration control.

The judge hesitated to treat this material as demonstrating that the scheme was, in the case of marriages to settled persons, disproportionate because it was unnecessary to achieve the end sought. That was because of the substantial degree of deference that he thought should be accorded to the decisions of the executive in matters of broad social policy, citing the observations of Lord Nicholls in Wilson: see the first judgment at §105. However, had the judge taken the approach to the demands of article 12 that is suggested at §§ 32-33 above, it would have become clear that, on the evidence as it was before him, the Secretary of State’s case for the necessity of the scheme in relation to marriages to settled persons had not been made out.

A further difficulty about the Secretary of State’s evidence as to problem of detecting “sham” marriages turns on the Secretary of State’s view of what kinds of marriages count as sham or collusive under the article 12 jurisprudence that is summarised in §29 above. In careful submissions, Mr Drabble pointed out that the 2006 Regulations, and their predecessors, which exclude from protection “marriages of convenience” with EEA nationals, but without further definition of that concept, are intended to implement this country’s obligations under Directive 2004/38EC. That Directive, in its recital 38, included amongst the aims of the Directive to guard against “abuse of rights or fraud, notably marriages of convenience or other form of relationships contracted for the sole purpose of enjoying the right of free movement and residence”. Since EU legislation is informed by the jurisprudence of the ECHR, in the absence of other guidance the formulation in the recital may reasonably be taken to represent the Convention’s understanding of a marriage of convenience.

However, the evidence of Mr Robinson, set out in §16 above, suggests that the Secretary of State has a wider view than that of what count as sham marriages or marriages of convenience. It will be recalled that Mr Robinson said that the Secretary of State saw as falling in that category marriages where “the purpose” (not necessarily the sole purpose) was to circumvent immigration control; and, perhaps more strikingly, a marriage could be sham in that sense whether or not the parties intended to live with each other as man and wife. Two comments follow. First, it is difficult to see that interference with article 12 rights on grounds of immigration control could ever be justified in a case where the parties did indeed intend to live together as man and wife: see further, as to the objections to a scheme that catches marriages that are genuine, in the very sense of the parties intending to live together, §§ 29 (v)-(vi) and 44 above. Second, if the Secretary of State has a much larger target for the investigation of “sham” marriages than the Convention jurisprudence would seem to justify, then he can hardly be heard to complain that the detailed pursuit of that investigation would be unduly burdensome.

This point really only emerged in oral argument before us, and we therefore do not have the judge’s view on it. For my part, however, it would seem to be a further substantial ground for thinking that the Secretary of State has not established the necessity of the scheme to the pursuit of immigration control.

The same objections would seem to arise in the third case, of marriages to EEA nationals. Indeed, there the assumptions of Directive 2004/38 are directly engaged, and the apparent failure to act on them is a further difficulty in the Secretary of State’s path.

In the light of the Convention jurisprudence, the Secretary of State can only interfere with the exercise of article 12 rights in cases that involve, or very likely involve, sham marriages entered into with the object of improving the immigration status of one of the parties. To be proportionate, a scheme to achieve that end must either properly investigate individual cases, or at least show that it has come close to isolating cases that very likely fall into the target category. It must also show that the marriages targeted do indeed make substantial inroads into the enforcement of immigration control. For the reasons given by the judge, and for the further reasons that I have set out above, the scheme in issue in this case does not pass that test. I would dismiss the Secretary of State’s appeal in this case.

It may better reflect the terms of this judgment if there is substituted for the judge’s third order, against which the Secretary of State appeals, a simple declaration that the scheme is unlawful as being inconsistent with article 12. I would leave it to the parties to agree on the exact terms of the relief.

In his third judgment, [2007] 1 WLR 735, the judge considered the specific decision of the Secretary of State to refuse a COA to Mr Baiai. The judge held that, despite his conclusions about the scheme in his first judgment, the Secretary of State’s refusal had been lawful and proportionate, because Mr Baiai was unlawfully in the United Kingdom, and not merely here under a short-term permission.

I can deal with Mr Baiai’s appeal quite shortly. There may well be good grounds for saying that when a person should not be in this country at all, even on a temporary basis, it would be reasonable and proportionate to prevent him from using the access to article 12 that that physical presence gives him in order to improve his immigration position. But that is not the basis on which the Secretary of State rested his refusal of Mr Baiai’s application. The only right that he claimed to interfere with Mr Baiai’s intended marriage was, and had to be, based on the scheme. The objection inherent in the scheme, that it inhibits marriages on grounds of immigration status rather than by a reliable consideration of the genuineness of the marriage, applies just as much in the case of an illegal entrant such as Mr Baiai as in the case of persons with very limited permission to be here, such as Mr Bigoku and Ms Agolli. The scheme being unlawful, the Secretary of State’s decision under it has to fall with it: however much, as I have said, there might be the possibility of dealing with cases such as that of Mr Baiai under differently formulated legislation.

I would therefore allow Mr Baiai’s appeal in Case C4/2006/1621.

I agree.

I also agree.