Baiai & Ors v Secretary of State for the Home Department & Anor

In paragraph 1, I explain that the basic issue to be resolved on each of these three applications is the compatibility with articles 12 and 14 of the European Convention on Human Rights of a new regime introduced by the Secretary of State for the Home Department by which a person, who is subject to immigration control and who wishes to enter into a civil marriage in the United Kingdom (that is a marriage other than according to the rites of the Church of England) has to apply to the Secretary of State for a certificate of approval to marry at a cost of £135. Under this regime, notice of the marriage and the actual civil marriage may only take place if the Secretary of State gives a certificate of approval, which will only be granted in certain limited circumstances.

The regime is summarised in paragraphs 2 and 3 and then described in greater detail in paragraphs 8 to 16.

The factual background to the three claims is set out in paragraphs 17 to 29.The issues raised on this application are described in detail in paragraph 30 .The admissibility and value of statements contained in witness statements made by officials is considered in paragraphs 32 to 36. The admissibility and significance of the report of the Parliamentary Joint Committee on Human Rights on the new regime is discussed in paragraph 37.Paragraphs 38 and 39 explain why it is the current effect of the new regime which has to be considered rather than when it was enacted.

The issues on the article 12 claim are set out in paragraphs 42 to 45. In paragraphs 45 to 59, it is explained why it is permissible to introduce legislation, to prevent marriages entered in to for the purpose of avoiding immigration control even though this legislation could interfere with the right to marry.. The deference due to the executive and the legislature to a decision in respect of policy affecting article 12 rights is dealt with in paragraphs 60 to 63. In paragraphs 64 to 73, it is explained why the legislative object of preventing sham marriages is sufficiently important to justify limiting an article 12 right.

Paragraphs 74 to 92 are devoted to showing that the measures in the regime which are designed to meet the legislative objective are not rationally connected to it for five different and partly overlapping reasons. These include first the fact that all non-Anglican religious marriages require a certificate of approval but the salient point is that there is evidence that sham marriages take place in registry office marriages and that there are features of the circumstances leading up to an Anglican religious ceremonies which might explain why there is no evidence of such ceremonies being used for sham marriages taking place. The treatment of non- Anglican religious marriages is a matter of concern because they are treated like registry office marriages even though there is undisputed evidence that the same precautions which prevent sham marriages taking place in Anglican religious ceremonies are present in non--Anglican religious ceremonies. Furthermore, it seems likely that no consideration was given to the issue of whether non- Anglican religious marriages had been used for sham marriages or were likely to be so used. Second, the regime contains an almost inflexible rule that there is no consideration of the merits of an application but its success will depend on the immigration status of the applicant. This approach had been criticised in a report of the Parliamentary Joint Committee on Human Rights on the new regime

There is in paragraphs 93 to 109 a discussion of whether the means used in the new regime are necessary to accomplish the objective of avoiding sham marriages before the conclusion in paragraph 110 that the article 12 claim succeeds as the new regime is not proportionate and that it constitutes a substantial interference with article 12 rights.

The issues and the proper approach to the article 14 claim are set out in paragraphs 111 to 123. The degree of scrutiny for article 14 claims based on discrimination on grounds of religion and nationality are set out in paragraphs 124 to 133.

In paragraph 134 to 138, there is an explanation of why the section 19 regime constitutes discrimination on grounds of religion and of nationality. Paragraphs 138 to 148 explains why in the absence of any evidence explaining why this discrimination is not justified in the interests of immigration control bearing in mind that non-religious Anglican marriages require a certificate of approval while those conducted in an Anglican religious ceremony do not.

The conclusions appear in paragraphs 149 to 152.

The basic issue to be resolved on each of these three applications is the compatibility with the provisions of the European Convention on Human Rights (“ECHR”) of a new regime introduced by the Secretary of State for the Home Department (“the Secretary of State”) by which a person, who is subject to immigration control and who wishes to enter into a civil marriage in the United Kingdom (that is a marriage other than according to the rites of the Church of England) has to apply to the Secretary of State for a certificate of approval to marry at a cost of £135. Under this regime, notice of the marriage and the actual civil marriage may only take place if the Secretary of State gives a certificate of approval, which will only be granted in certain circumstances.

This regime (which I will refer to as “the section 19 regime”) was introduced by sections 19 to 25 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (“the 2004 Act”) together with the Immigration (Procedure for Marriage) Regulations 2005 (“the 2005 Regulations”) and the Immigration Directorates’ Instructions (“the Guidance”⁾. Actual or proposed marriages according to the rites of the Church of England are not affected by the section 19 regime even if both parties are subject to immigration control, unless the marriage follows the civil preliminaries under part III of the Marriage Act 1949 to which I will refer in greater detail in section II below.

These applications comprise of three different claims in which each of the claimants has sought to challenge the new regime not only on ECHR grounds but also because in the case of at least one claimant it does not comply with provisions in European Union (“EU”) legislation.

Each application raises a conflict between two important principles of which the first is the rights given to the individuals under articles 12 and 14 of the ECHR to marry and not to be discriminated against. The second principle is the right of the state to control its own immigration policy. The Secretary of State seek to justify the new regime on the grounds that it is necessary to avoid the abuse of immigration rights by sham marriages, which are marriages entered into solely in order to obtain an advantage under the immigration rules.

In each case, the claimants had applied for certificates of approval. In the case of the claimants Mohmoud Baiai and Izabela Trzcinska, the Secretary of State refused their applications and they have sought in these proceedings to challenge that refusal. In the case of the remaining claimants, certificates of approval were granted after proceedings were commenced but they have continued to pursue their claims seeking damages for the delay in being able to marry. In all cases, the single judge has given the claimants permission to pursue their claims.

It was agreed by all counsel that the present hearing should be used to consider the compatibility of the new regime with the ECHR, and, as I will explain, a series of issues for decision has been prepared by counsel and they are set out in paragraph 30 below. At this stage, it seems that the claimants cannot succeed on the EU point without also being successful on the ECHR issues but Mr Ramby De Mello on behalf of the claimants reserves the right to make submissions on the EU issue after I have delivered this judgment on the ECHR issues.

It was initially contended by the claimants that the new regime infringes their article 8 rights as well their article 12 and article 14 rights but they later correctly accepted that there was no point in pursuing that claim as they could not obtain a more favourable result on that claim than on the similar article 12 claim. The Joint Council for Welfare of Immigrants (“JCWI”), which is a leading national organisation campaigning for the rights of immigrants, was given permission to intervene in these proceedings and they have been represented by Mr Richard Drabble QC and Mr Eric Fripp on a pro bono basis. They have supported the claimants’ case by making thoughtful and helpful submissions. I am grateful to all counsel for their admirable oral and written submissions. Unfortunately I have been on circuit and this has delayed the handing down of this judgment.

The principal Act governing marriages in the United Kingdom is the Marriage Act 1949, Part I of which provides various general restrictions on marriage such as prohibitions on marriage between related persons, persons below certain ages, and restrictions on the hours of the day in which marriages may be performed. The statutory provisions regulating marriage according to the rites of the Church of England are set out in Part II of the Act. Part III provides for marriage under superintendent registrar’s certificate, which covers all other marriages.

There is a degree of overlap between the provisions of Part II and Part III, in that one of the four ways in which a marriage may be solemnised under Part II is on the authority of a certificate issued under Part III (see s.5 (d)). The other three ways in which marriage according to the rites of the Church of England may be solemnised are (a) after publication of banns; (b) on the authority of a special licence granted by the Archbishop of Canterbury; and (c) on the authority of a common licence of marriage granted by an ecclesiastical authority with appropriate power to issue such licence.

Section 19 of the 2004 Act applies to marriages involving a party subject to immigration control and that category is defined by s.19 (4) (a) as being any person, who is not an EEA national and who requires leave to enter or remain in the UK and whose marriage is to be solemnised on the authority of certificates issued by a superintendent registrar under Part III of the Marriage Act 1949. The section 19 regime does not apply to marriages under Part II of the Marriage Act, which are marriage according to the rites of the Church of England. Such marriages are the only marriages which fall outside the new regime.

Under section 19(2) of the 2004 Act, marriages covered by the new regime require notice to be given to the Superintendent Registrar in a specified registration district. The specified registration districts for England and Wales are set out in Schedule 1 to the 2005 Regulations. There are and have been since the coming into force of the 2005 Regulations on 1 February 2005, 76 such specified registration districts in England and Wales. This provision limits the places in which people covered by the regime can apply to be married.

Section 19(3) of the 2004 Act provides that:

“(3)

The superintendent registrar shall not enter in the marriage notice book notice of a marriage to which this section applies unless satisfied, by the provision of specified evidence, that the party subject to immigration control –

(a)

has an entry clearance granted expressly for the purpose of enabling him to marry in the United Kingdom,

(b)

has the written permission of the Secretary of State to marry in the United Kingdom, or

(c)

falls within a class specified for the purpose of this paragraph by regulations made by the Secretary of State.”

Permission of the Secretary of State under s.19 (3) (b) of the 2004 Act is granted by the issuing of a certificate of approval (“COA”). The procedure for applying for a COA is set out in the 2005 Regulations and this includes the payment of a fee (reg 7(1)(b)) of £135 (reg 8(1)). The application must be in writing (reg 7(1) (a)) and it must contain the information set out in Schedule 2 to the 2005 Regulations. If both persons wishing to marry fall within section 19 of the 2004 Act (i.e. both are subject to immigration control), then two separate applications must be made for COAs and two separate fees are payable .

The policy applied in considering applications for a COA is set out within the Guidance and specifically at section 15 of Chapter 1, together with additional guidance at Annex NN. The Guidance shows that the policy is that in order to qualify for a COA:

To date, only one class has been specified under section 19(3)(c) and that category comprises a person who may be granted a COA even though he or she does not have the immigration status specified in paragraph 14 above, namely leave to remain for more than 6 months with more than 3 months remaining. By regulation 6 of the 2005 Regulations, by which a person who is “settled in the United Kingdom” is “specified” for the purposes of section 19(3) (c), the term “settled in the United Kingdom” has the meaning provided by paragraph 6 of the Immigration Rules, which is essentially that a person is settled in the United Kingdom if he is ordinarily resident in the UK, in compliance with immigration laws, without restriction on the period for which he may remain.

The practical effect of the new regime is that applicants, who first do not have a valid right to enter or remain in the United Kingdom beyond a short term status (i.e. more than 6 months with more than 3 months remaining at the time of the application for the COA) or second have an initial application for immigration status or an appeal outstanding for 18 months or third have compelling compassionate circumstances, which make it unreasonable to expect the couple to travel and marry abroad, are expected to travel and marry abroad and then apply for entry clearance for marriage in the United Kingdom.

The Claimants Mahmoud Baiai and Izabela Trzcinska

Mahmoud Baiai is an Algerian, who was born on 2 September 1971. On his own account, he entered the United Kingdom illegally in February 2002, and he has remained here illegally since then, without having made any attempt to regularise his immigration status in that time.

Izabela Trzcinska is a Polish national, born on 27 July 1979, who is working in the United Kingdom following Poland’s accession to the EU and so she is an EEA/EEC national. She arrived in July 2004.

Mr Baiai states that he met Ms Trzcinska on 13 August 2004 at the Hogshead public house where she was working. Mr Baiai states that they “decided to start a relationship together in or about early October 2004” and a joint tenancy agreement starting on 11 October 2004 has been produced.

Under cover of letter dated 31 January 2005, Mr Baiai applied to the Home Office for a COA. The Secretary of State for the Home Department refused that application by letter dated 15 February 2005. This claim for judicial review of that decision (CO/1460/2005) was issued on 8 March 2005.

The claimants Leonard Bigoku and Luljeta Agolli

Leonard Bigoku is a national of the Former Republic of Yugoslavia and comes originally from Kosovo being of Albanian ethnicity. He was born on 13 March 1973. He arrived in the United Kingdom on 28 October 1998 and he applied for asylum the next day. He was granted Exceptional Leave to Remain (“ELR”) for 1 year on 19 July 1999, under a concession then in force, without prejudice to his asylum claim. His ELR expired on 19 July 2000. Mr Bigoku was interviewed by the Home Office on 7 June 2001. Mr Bigoku’s asylum claim was refused on 6 January 2006. The decision was sent to his solicitors that day by recorded delivery.

Luljeta Agolli is a national of the Former Republic of Yugoslavia originally coming from Serbia and of Albanian ethnicity. She was born on 5 June 1984. The Secretary of State is not aware of the date on which she arrived in the UK but she was granted ELR on 31 January 2003, which was to expire on 31 January 2007.

Mr Bigoku and Ms Agolli applied for separate COAs on 13 May 2005. There followed a regrettable delay in considering their applications. They then issued judicial review proceedings (C0/6908/2005) on 2 September 2005. Both the Claimants’ applications for COAs were granted on 15 September 2005 with the COAs expiring on 15 December 2005. In the light of this decision, the Claimants were invited to withdraw the claim. The Claimants declined this invitation and they now wish to claim damages for the delay in giving them permission to marry.

Melek Tilki

Melek Tilki is a Turkish national, who was born on 5 September 1987. She arrived in the UK on 8 November 2004. Ms Tilki’s application for asylum was refused on 9 December 2004 but she was granted Limited Leave to Remain on a discretionary basis, which expired on 4 September 2005. No further grant of immigration status has been made and she is therefore an overstayed.

Mehmet Ince is a Turkish national, born on 13 June 1970. He arrived in the UK on 11 September 2001 and was granted indefinite leave to remain on 22 July 2002.

Ms Tilki and Mr Ince had known each other in Turkey and they are cousins. In November 2004, shortly after Ms Tilki’s arrival in the UK, the claimants made inquiries of Hackney Town Registry Office for the purpose of getting married. In early 2005, Ms Tilki fell pregnant and in March 2005 her parents gave their consent to her being married, such consent being required by virtue of her age.

On 22 June 2005, Ms Tilki, through her solicitors, applied for a COA. The letter of application asserted that the requirement that Ms Tilki seek the approval of the Secretary of State to get married in the UK was unlawful and it invited the Secretary of State to confirm this. It was stated that in the absence of such confirmation, Ms Tilki would have no alternative but to seek judicial review.

Ms Tilki’s application was refused by letter dated 18 July 2005, the information of her pregnancy not being on the form, although the contrary is asserted in her witness statement. Ms Tilki’s LLR expired on 4 September 2005 and judicial review proceedings (CO/7442/2005) were issued on 19 September 2005. The acknowledgement of service and summary grounds were served on 29 September 2005.

On the same day, Ms Tilki was granted a COA, expiring on 29 December 2005. She was invited to withdraw her claim for judicial review in the light of the grant of the COA, but she is still pursuing her claim for damages on the grounds of the delay in granting her a COA.

As I have explained the issues raised on this application are essentially the compatibility of the 2004 Act, the 2005 Regulations and the Guidance with articles 12 and 14 of the ECHR. There are apparently a number of other outstanding applications challenging the section 19 regime and so it was considered desirable by all the parties for me to resolve in the first instance certain general issues, which would then enable both the particular claims before me and hopefully the other claims then to be resolved. Therefore at my suggestion, all counsel helpfully produced an agreed list of issues for me to resolve and it states that:

“Article 12

1.

What is the nature of the Article 12 right? Is it an absolute right from which it is not open to the State to derogate? Does the reference to “according to the national laws governing the exercise of this right” permit the State to impose procedural requirements and rules of substance preventing marriages on policy grounds?

2.

In the light of the answer to 1 above, does the section 19 regime consist of either procedural rules or rules of substance that are [im]permissible having regard to the nature of the right?

3.

In order to establish a violation of Article 12 of the ECHR, are the Claimants required to show that the section 19 scheme involves a substantial interference with the exercise of the right to marry?

(a)

If the answer to question 3 is yes, does the section 19 scheme involve such a substantial interference with the right to marry?

(b)

If the answer to question 3 is no, does the section 19 scheme in any event involve an interference with the right to marry under Article 12 of the ECHR?

4.

In any event, is any interference with the right to marry which results from the section 19 scheme justified? That is, does the section 19 scheme have a legitimate objective which is sufficiently important to justify limiting a fundamental right, is the section 19 scheme rationally connected to that objective, and are the means by which that objective is sought to be achieved no more than is necessary to achieve that objective?

5.

In considering question 4, the Court may wish to consider whether a scheme which requires prior permission to marry in the interests of immigration control is in principle permissible, and (if so) whether all or any of the present criteria applied by the Secretary of State for granting permission are permissible. The Court may also wish to consider whether a policy of deterring marriages of convenience by preventing all marriages in the UK by persons of a given immigration status, regardless of whether there is evidence in an individual case to suggest a marriage of convenience, is permissible.

Article 14 (with Article 12 and/or Article 9)

Religion

6.

Does the section 19 scheme discriminate on the ground of religion? [In answering this question the Defendant invites the Court to consider whether those who marry under Part II of the Marriage Act 1949 are in a relevantly similar, or analogous, position to those who marry under Part III of the Marriage Act.]

7.

If so, is religion a ground of discrimination that (at least when the discrimination is direct) requires particularly weighty reasons in order to be justified?

36.

If so, are such weighty reasons required in this case, bearing in mind the nature of the discrimination (i.e. to what extent it is direct or indirect and whether or not such distinction matters at all)?

8.

If there is discrimination on the ground of religion, is that discrimination objectively justified? That is, does the difference in treatment pursue a legitimate aim, and is there a reasonable relationship of proportionality between the means employed and the aim sought to be realised? [The Claimants suggest that the Court may wish to ask whether there is enough of a relevant difference between the religions to justify different treatment?]

Nationality

9.

Does the section 19 scheme discriminate, directly or indirectly, on the ground of nationality? The Claimants allege that there is indirect discrimination on the ground of nationality in that the proportion of non-British nationals who marry under Part II of the Marriage Act 1949 is considerably smaller than the proportion of British nationals who do so. [In considering whether there is discrimination on the ground of nationality, the Defendant invites the Court to consider (as in 7 above) whether those who marry under Part II of the Marriage Act 1949 are in a relevantly similar, or analogous, position to those who marry under Part III of the Marriage Act.]

10.

If there is discrimination on the ground of nationality, is that discrimination objectively justified? That is, does the difference in treatment pursue a legitimate aim, and is there a reasonable relationship of proportionality between the means employed and the aim sought to be realised?

11.

In addressing question 12 above, the Court will need to consider whether particularly weighty reasons are required to justify any discriminatory impact in this case, bearing in mind the nature of any discrimination.

General

12.

In addressing any issue of justification, the Court needs to consider the extent to which the State should be afforded a discretionary area of judgment.

13.

In considering the effect of the section 19 scheme, the Court needs to bear in mind the three different aspects of the scheme which are being challenged (i.e. the requirement for a COA; the policy of refusing COAs based upon immigration status regardless of whether there is evidence in an individual case to suggest a marriage of convenience; the requirement for a fee, and the requirement to give notice of marriage in a designated registry district), and to consider whether taken separately or cumulatively they involve a violation of the rights in question.

The elements of the section 19 scheme

14.

If and in so far as any breaches of the ECHR are found in relation to the operation of the section 19 scheme, the Court will need to consider separately the following questions (although it may be that some or all of these issues should not be determined until any remedies hearing):

(i)

Is any aspect of the relevant statutory provision (section 19 of the 2004 Act) incompatible with the ECHR rights of those affected by the scheme? [The Defendant invites the Court to consider, in addressing this issue, whether the fact that the Secretary of State’s discretion to grant permission to marry under section 19(3) is not circumscribed by the 2004 Act, and that the Secretary of State is required to act compatibly with ECHR rights under section 6 of the Human Rights Act 1998, prevents that provision from being incompatible with such rights.]

(ii)

Is any aspect of the relevant regulations (2005 Regulations) incompatible with the ECHR rights of those affected by them?

(iii)

Is any aspect of the Secretary of State’s policy set out in the guidance issued to give effect to the section 19 scheme unlawful in being incompatible with ECHR rights or contrary to Article 12 because it fails to follow fair procedures in granting and refusing certificates of approval?”

There are four aspects of this list of issues upon which it is appropriate to comment at this stage. First, the issues which I am asked to resolve are of general application and it is envisaged that when I have dealt with the issues raised, it will then be possible to decide on the relief (if any) to which each of the claimants might be entitled. Second, it has been agreed that claimants will then have liberty to apply to raise any EU issues if it is considered that they might assist them. Third, I propose to deal only with the live issues raised on this application and leave to one side the issues on which an advisory judgment is sought, such as issue 5. Finally, I should record that no specific submissions have been adduced that any aspect of the section 19 regime has to be read and given effect to in a way which is compatible with the Convention rights in accordance with section 3(1) of the Human Rights Act 1998. In other words it is not suggested that I should not give the ordinary meaning to any words in any of the provisions, which contain any aspect of the section 19 regime.

There are three aspects of the evidence on this application which were the subject of submissions. First, the evidence adduced by the Secretary of State contained a number of witness statements prepared by his officials which set out the background to the regime under challenge. The use of such material has been the subject of consideration by the appellate courts. Most recently in Lancashire County Council v Taylor [2005] 1 WLR 2668, Lord Woolf CJ giving the judgment of the Court of Appeal explained in relation to the admissibility of witness statement of an official that :

“54...in so far, as it recounts history which cannot be extracted from the successive Acts, it is relevant and helpful. Such history may properly include issues which had come to the attention of the department of state sponsoring the legislation, for example through correspondence with a representative body”.

In my view whereas on the present application, the issue under consideration is the proportionality of legislative provisions, evidence of the problems which the legislation seeks to remedy has substantial importance especially when it cannot be gleaned from the terms of the legislation itself or any other source. Such evidence is of particular relevance and value in, for example, ascertaining for the purpose of considering proportionality whether “the legislative objective is sufficiently important to justify limiting a fundamental right” (per Lord Steyn in R v Secretary of State for the Home Department ex parte Daly [2001]2 AC 532,547).

Lord Hobhouse explained in Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816, 865 - 866 [142] that.

“The questions of justification and proportionality involve a sociological assessment… it also involves consideration of what is the mischief, social evil, danger etc which it is designed to deal with… But equally there will almost always be other evidentially valuable material which can be placed before the court which is relevant, such as reports that have been made, statistics that have been collected, and so on. Oral witnesses may have important evidence to give… This evidence is admitted because it relates to the making of the required sociology assessment”.

In the same case, Lord Nicholls of Birkenhead said at page 842 [63]:

“Moreover, as when interpreting a statute, so when identifying the policy objective of a statutory provision or assessing the “proportionality” of a statutory provision, the court may need enlightenment on the nature and extent of the social problem (the “mischief”) at which the legislation is aimed. This may throw light on the rationale underlying the legislation”

In consequence the evidence in the witness statements from Home Office officials and the subsequent witness statements in opposition dealing with the problems at which the legislation is aimed are admissible.

A second issue that has arisen concerns the admissibility and significance of the report of the Parliamentary Joint Committee on Human Rights (“the Joint Committee”) on the Asylum and Immigration (Treatment of Claimants) Act 2004, which was exhibited to the witness statement of Mr Derek Beoku-Betts, a Solicitor and Case Work Director of JCWI. This report contains the views of the Joint Committee on the compatibility of the regime under challenge in the present case with the ECHR. Insofar as the Joint Committee expresses opinions on compatibility and other matters of law, such opinions are of persuasive value but they can have no greater weight than, for example, the views of distinguished academic writers. Unlike the Joint Committee and academic writers, I have had the great advantage of hearing and reading oral and written submissions and I will reach my decision in the light of those submissions on the compatibility of the regime under challenge with the ECHR but taking into account the views of the Joint Committee

The third issue relates to the date at which incompatibility has to be considered. Lord Nicholls of Birkenhead stated in the Wilson case at page 842 [62] that when considering the proportionality test:

“It is the current effect and impact of the legislation which matter, not the position when the legislation was enacted or came into force”.

In consequence, I am obliged to examine the regime as it now exists taking account of the 2005 Regulations and the Guidance, especially as each of the claimants contends that the operation of them has infringed their human rights as set out essentially in articles 12 and 14 of the ECHR. The Secretary of State contends that his discretion to grant permission to marry is not circumscribed by the 2004 Act and that he is required to act compatibly with ECHR rights under section 6 of the Human Rights Act 1998. So it is said that this prevents that provision from being incompatible with such rights. I am unable to adopt that submission which ignores the 2005 Regulations and the Guidance.

Introduction

Article 12 of the ECHR provides with emphasis added that:

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

As I will explain, the English courts have only had to resolve claims based on article 12 on a few occasions and then the claims have related primarily to the article 12 rights of prisoners. Both the claimants and the JCWI contend first that the new regime significantly interferes with the right to marry under article 12 and second that it also does not satisfy the requirement of being proportionate. In approaching these contentions, I will bear in mind that Lord Bingham of Cornhill explained in R (Ullah) v Special Adjudicator [2004] 2AC 323 that:

“20…. The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less”.

Miss Carss-Frisk submits that the section 19 scheme is compatible with article 12 because there is nothing inherently objectionable in article 12 terms in subjecting persons, who are subject to immigration control and who wish to marry in the United Kingdom to the requirement of prior entry clearance or approval in the interests of effective immigration policy. She contends that the broad discretion to grant a COA enables the Secretary of State to take into account individual circumstances and to ensure that the rights guaranteed by article 12 are respected. Miss Carss-Frisk contends that the new regime also satisfies the requirements of proportionality.

Lord Steyn explained the approach to proportionality in R v Secretary of State for the Home Department ex parte Daly [2001] 2 AC 532, 547 when, adopting the approach in de Freitas v Permanent Secretary of Ministry of Agriculture [1999] 1 AC 69 at page 80, he said that the requirement of proportionality means that a court must consider three matters, which are:

“27… 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 impair the right or freedom are no more than is necessary to accomplish the objective”.

The parties also disagree about the extent to which a court should accord deference to the opinion of legislature or the executive. The claimants dispute Miss Carss-Frisk’s contention that a substantial degree of deference is owed by the courts in respect of immigration issues and article 12.

The issues

I will consider in turn the issues raised in respect of the article 12 claim, which are:

Is the Secretary of State entitled to impose restrictions or conditions on the right to marry in the interests of an effective immigration policy without contravening article 12?

The parties’ submissions are centred on the closing limiting words in article 12, which are “according to the national laws governing the exercise of this right”. The claimants contend first that these last words in article 12 only confer on the national authorities a very limited power to deprive a person of the right to marry and second that this right is so limited that immigration control is not a factor which justifies interfering with article 12 rights. Thus, they say that in Hamer v United Kingdom (1979) 4EHRR 139, the European Commission explained the power of national laws in relation to article 12 in this way:

“62.

Such laws may thus lay down formal rules concerning matters such as notice, publicity and the formalities whereby marriage is solemnised. They may also lay down rules of substance based on generally recognised considerations of public interest. Examples of rules concerning capacity, consent, prohibited degrees of consanguinity or the prevention of bigamy. However, in the Commission’s opinion national law may not otherwise deprive a person or category of persons of full legal capacity of the right to marry. Nor may it substantially interfere with their exercise of the right”.

In that case, the Commission found unanimously that the right of the applicant prisoner to marry pursuant to article 12 had been violated by a decision of the United Kingdom Government refusing him permission to marry.

Subsequently in Sydney Draper v United Kingdom (1980) 24 DR 72 , the European Commission held that the refusal of the United Kingdom government to allow the applicant prisoner a temporary release from prison in order to marry involved a violation of his article 12 right to marry. In its decision, it pointed out that:

“52.

The Commission first recalls that the Court has held that, even though a right is not formally denied, “hindrance in fact can contravene the Convention just like a legal impediment“and hindring (sic) the effective exercise of a right may amount to a breach of that right, even if that hindrance is of a temporary character”.

In F v Switzerland, ((1987) 10 EHRR 411), the European Court of Human Rights quoted a previous judgment explaining that the closing words in Article 12 (“according to the national laws governing the exercise of this right” ) confer only a limited power on states because the national laws:

“32…. “must not restrict or reduce the right in such a way or to such an extent that the very essence of the right is impaired”… In all the Council of Europe’s member States, these “limitations” appear as conditions and are embodied in procedural or substantive rules. The former relate mainly to publicity and the solemnisation of marriage, while the latter relate primarily to capacity, consent and certain impediments”.

On the basis of those statements, the claimants contend that a state is not entitled to exercise its powers so as to restrict the right to marry as part of the Secretary of State’s immigration policy. In response, the submission on behalf of the Secretary of State is that the article 12 right is further limited because the effect of the last eleven words in article 12 gives the state the power to limit the article 12 right for public interest reasons. The Secretary of State relies on the statement in Hamer’s case (supra) that:

“62... [States] may also lay down rules of substance based on recognised considerations of public interest” (see to the same effect paragraph 49 in Draper’s case).

According to Miss Carss-Frisk, the maintenance of a system of immigration control is one of the recognised considerations of public interest, which may justify restricting the exercise of the right to marry. In support of this submission, she relies principally on two decisions of the European Commission on Human Rights, which entitled a state to prevent a sham marriage taking place without infringing the article 12 rights of the parties.

First, in Sanders v France Application No. 31401/96, 87 B-DR 160 at 163, it was stated that:

“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, to be contrary to Article 12 of the Convention.”

Second, in Klip & Krüger v Netherlands Application No. 33257/96, 91 A-DR 66, the Commission rejected as “manifestly ill-founded” a complaint that the parties’ article 12 rights were infringed because under Dutch Act on prevention and suppression of marriages of convenience, there had to be 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 applicants complained that;

“the exercise of [their article 12] right to marry was unjustly delayed on discriminatory and humiliating grounds, i.e. an investigation into the motives of their marriage, which went beyond the limits accepted under the Commission’s case- law…”.

The Commission rejected this complaint as manifestly ill-founded and it considered the requirement for parties proposing to marry to provide statements before consent to the marriage could be given before concluding that:

“the purpose of [the rules] is to prevent marriages of convenience between Dutch nationals and aliens for immigration purposes. In this respect the Commission recalls that the Dutch immigration policy is clearly related to the economic well-being of the country, in particular to the authorities’ concern, given the population density in the Netherlands, to regulate the labour market.[Reference omitted]

Although in the circumstances of the present case the relevance of the statement at issue may be questionable, the Commission cannot find the limitation at issue may be questionable, the Commission cannot find the limitation at issue, namely the applicants obligation to submit a statement. to be contrary to article 12...”

Miss Carss-Frisk submits correctly in my view that it follows that measures introduced as part of immigration control measure for economic and social reasons which have the effect of preventing persons marrying in the country of their choice for immigration purposes does not infringe the substance of the article 12 right to marry or constitute an unlawful interference with that right where the persons so affected are then able to marry abroad, even where there is a financial barrier to that occurring. She also relied upon the decision in Application No. 9773/82 v United Kingdom, [1982] 5 EHRR 296 in which the European Commission found to be manifestly ill-founded a complaint of breaches of Articles 8, 12 and 14 of the ECHR where entry clearance was refused for the Philippine fiancée of a disabled man of limited means on the basis that she did not have the means to maintain and support herself without access to public funds. The Commission observed that there was no evidence on the file that there would be any legal obstacles preventing the applicant from marrying his fiancée in the Philippines. The Commission explained that the article 12 right:

“does not, in principle, include the right to choose the geographical location of the marriage” (page 296)

“the Commission considers that the limitation of immigration possibilities to only those people who will definitely not create an economic burden on the host state is not of itself an unreasonable or arbitrary requirement” (page 297).

Similarly in Application No.10914/84 v Netherlands (1986) 8 EHRR 308, both applicants were present in the Netherlands and they complained that they would be prevented from marrying there because of a decision to expel the intended husband to Morocco. The Commission noted at page 309 that:

“Act 12 of the Convention does not guarantee the right to marry in a particular country, or under a particular legal system.”

In my view, the jurisprudence of the European Commission on Human Rights expressly permits the introduction of legislation to prevent marriages entered into for the purpose of avoiding immigration control notwithstanding that this legislation might interfere with the right to marry. Indeed if this were not so, a person could not be prevented from getting married in the United Kingdom if that person had proclaimed that he or she had no intention of ever seeing or communicating with his or her prospective spouse after the marriage and that his or her only purpose of getting married was to gain the immigration advantages of being married to his or her intended spouse. It cannot be right that the article 12 rights of that individual would be infringed by legislation which prevented this sham marriage from taking place. So the Secretary of State is entitled to impose restrictions or conditions on the right to marry in the interests of an effective immigration policy without contravening article 12 but provided that each of those conditions or restrictions satisfies the three requirements of proportionality to which I have already referred in paragraph 43 above.

In reaching this conclusion, I have not overlooked two matters relied on by the claimants and the JCWI of which the first is the decision of the House of Lords in Vervaeke v Smith [1983] 1 AC 145 relied upon by the claimants but the ratio of that case is that marriages must be recognised as legally valid if the requirements of formality and capacity have been met irrespective of the intentions of the parties. This decision is not relevant to the totally different issue raised by the present applications concerning the lawfulness of legislation aimed at preventing marriages entered into for the purpose of evading immigration control.

Second, Mr Drabble sought to rely on article 1 of the ECHR which provides that “the High Contracting Parties shall secure to everyone within their jurisdiction their rights and freedoms defined in s.1 of this Convention”. He submits that this provision means that all United Kingdom residents have an article 12 right to marry in the United Kingdom. I am unable to accept that submission for three reasons of which the first is that the right in article 1 is not a “convention right” protected by the Human Rights Act 1998. Second, as I explained in paragraph 56 above, the European Commission has already decided that article 12 “does not guarantee the right to marry in a particular country”. Third, it is settled law that article 1 of the ECHR does not, in any event, add anything to any of the other convention rights and freedoms with the result that it does not confer any rights over and above those to be found elsewhere in the ECHR.

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?

It is common ground that the approach to this problem was summarised by Dyson LJ when he explained in Samaroo and Sezek v Secretary of State [2001] UKHRR 1150 at 1164 that he had:

“35...been assisted by the discussion at paragraph 3.26 of Human Rights Law and Practice (Butterworth 1999), of which Lord Lester of Herne Hill QC and David Pannick QC are the general editors. They identify the following factors: (a) the nature of the Convention right: is the right absolute or (as in the case of Article 8) does it require a balance to be struck? The court is less likely to defer to the opinion of the decision-maker in the former case than the latter. (b) the extent to which the issues require consideration of social, economic or political factors. The court will usually accord considerable deference in such cases because it is not expert in the realm of policy-making, nor should it be because it is not democratically elected or accountable. (c) The extent to which the court has special expertise, for example in relation to criminal matters. (d) Where the rights claimed are of especial importance, ‘a high degree of constitutional protection’ will be appropriate. The European Court of Human Rights has recognised as being of especial importance rights to freedom of expression and access to the courts”.

As to factor (a) in this formulation, there has been a dispute as to whether article 12 is an absolute right or a right which requires a balance to be struck. In my view, article 12 is not an absolute right because, as I have explained in paragraphs 50 to 57 above, the last eleven words of article 12 entitle member states to strike a balance because, as was explained in Hamer’s case (supra), those states:

“..62. …may also lay down rules of substance based on recognised considerations of public interest”

Moving to factor (b), issues of immigration and sham marriages are classic examples of areas, which require consideration of social and also political issues and in these matters the legislature and the executive are entitled to substantial deference because they, unlike the judiciary, are the designated experts in the realm of policy-making in these fields. The remaining factors show that the Secretary of State and the legislature are entitled to substantial deference because as to factor (c), the courts do not have any special expertise on immigration policy and in respect of factor (d), the right to marry, although an important fundamental right, does not qualify as one of “the rights claimed ... of especial importance” . Indeed it is significant that in Samaroo, Dyson LJ stated that the article 8 right to family life is “not regarded as a right which requires a high degree of constitutional protection” [36]. There is a substantial overlap between articles 12 and 8 as they both concern family life and if, as I consider to be the true position, article 8 is not one of “the rights claimed ... of especial importance”, then article 12 must be also be regarded in a similar way.

I therefore accept the submission of Miss Carss-Frisk that the Secretary of State and Parliament are entitled to substantial deference in determining what restrictions, if any, are appropriate to impose on article 12 rights and I will apply that approach when considering the issue of proportionality to which I now turn.

Is the legitimate legislative object for the section 19 scheme sufficiently important to justify limiting a fundamental right?

Miss Carss-Frisk contends that the legitimate legislative object for the section 19 scheme is sufficiently important to justify limiting a fundamental right and the Secretary of State relies on the evidence of some of his officials. Miss Alison Bennett, Assistant Director in the Managed Migration Strategy and Review Directorate of the Immigration and Nationality Department of the Home Office (“IND”) has made a witness statement in which she explains why it was thought necessary to introduce the section 19 regime under challenge in this case. In essence, she states that it was needed to prevent sham marriages, namely marriages contracted as a means of avoiding immigration control with the purpose of giving a non EEA national right to remain in this country because of the status now conferred on EEA nationals.

The Immigration Rules and the Immigration (European Economic Area) Regulations 2000 (“the EEA 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. Under European Community law, 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.

After four years, there is an avenue to permanent residence available for that spouse provided that his or her EEA national spouse continues to exercise treaty rights. A residence permit can be refused if a marriage is shown to be marriage of convenience in the form of a “sham” marriage or if it can be demonstrated that the EEA national is not exercising his or her treaty rights. Miss Bennett states that it is very difficult in practice to prove that a marriage is not genuine after it has taken place.

Miss Bennett stresses that there have been a substantial number of sham marriages which have taken place notwithstanding the legislation, which was in force before the 2004 Act and the 2005 Order were introduced. She also states these sham marriages give the non-EEA national the chance to obtain substantial rights to remain in the United Kingdom which they would not otherwise have enjoyed. There is a substantial amount of evidence about the large number of such marriages taking place in circumstance in which it is extremely difficult to detect they were sham marriages after they had taken place because, as Miss Bennett explains in her witness statement, that :

“in relation to all marriages (both those to EEA nationals and those to British citizens or people settled here) existing enforcement powers were considered insufficient to solve the problem of sham marriages. It is simply not possible to have immigration officers attending every single wedding, or conducting home visits to, or interviews with, every couple who is getting married or who has recently been married, in order to establish whether the marriage is genuine-this would be extremely resource intensive and we do not have such resources available. It was therefore considered that the better solution would be to make it more difficult to enter into sham marriage in the first place”.

Miss Bennett points out that a marriage by a non-EEA national to either a British national or an EEA national would give the non-EEA national many advantages. Such a marriage could assist a person, who had no basis for coming to or remaining in the United Kingdom by providing a basis on which to apply for entrance clearance as the spouse of a person settled here because:

According to Miss Bennett, third party nationals who marry EEA nationals have a number of immigration advantages over those who marry British nationals and in particular they:

Significantly, as I have explained, Miss Bennett has stressed that once a non-EEA national claims a right to remain in the United Kingdom following a sham marriage to an EEA national exercising Treaty rights, it is difficult to remove them because of the difficulty of establishing that the marriage was not genuine after it has taken place especially because a lack of resources prevents immigration officials from attending every single marriage or conducting home visits or interviews with every couple whether before or after their marriages have taken place.

There is clear and undisputed evidence that there have been a substantial number of sham marriages in the United Kingdom. Mr. Mark Rimmer, the Superintendent Registrar in the London Borough of Brent, has explained that:

Miss Bennett states that the trend up till the time when the new regime was introduced was not only for there to be an overall increase in applications but also that there has been “a marked shift” in the kind of cases being reported towards cases where the marriage sponsor is a non-EEA national.

This evidence demonstrates a disturbing problem, which the Secretary of State is entitled, if not obliged, to tackle. Bearing in mind the substantial deference due to the executive and the legislature, I am satisfied in the words of Lord Steyn in Daly quoted in paragraph 43 above that:

“The legislative objective [of preventing sham marriages entered into so as to avoid immigration control] is sufficiently important to justify limiting the fundamental [article 12 right]”.

Miss Carss-Frisk contends that it is not in dispute that a marriage to a person who has an established immigration status potentially enhances an individual’s immigration status. Nor does it appear to be in dispute that certain marriages are still entered into solely for that purpose. The section 19 scheme clearly serves the objective of ensuring that such sham marriages are rendered less likely as the requirements of the scheme (in particular, to obtain a COA or prior entry clearance) render it more difficult for those who are seeking to marry for the purpose of avoiding immigration control to do so. She contends that the section 19 regime has a beneficial deterrent effect because applicants for a COA or entry clearance are required to have direct contact with the immigration authorities. While the requirement to obtain a COA applies to persons who have obtained longer-term leave to enter or remain in the United Kingdom of more than six months, the Secretary of State’s current policy is that such persons should automatically be granted a COA. Hence, provision is made in the Guidance for a COA to be granted to such persons and so Miss Carss-Frisk contends that this is in line with the rules concerning leave to enter and to remain as a spouse.

According to Miss Carss-Frisk, the fact that a COA will at present generally be granted to persons, who have obtained longer-term leave to enter or remain in the United Kingdom in no way undermines the rational connection between the requirements of the scheme and the purpose of preventing marriages of convenience. The evidence suggests that the majority of sham marriages involve persons who are in the United Kingdom, illegally or on a short-term basis as is explained in the witness statement of Ian Robinson, paragraph 2. The requirement that the applicant should have three months leave remaining at the time of the application is necessary to ensure that the applicant is lawfully present in the United Kingdom for long enough to enable his application for first the COA to be processed, second the outcome communicated to him, third the marriage to take place and fourth the application for leave to remain on the basis of the marriage to be made.

Even bearing in mind the substantial degree of deference owed to the legislature and the executive for the reasons set out in paragraph 60 to 63 above, the following reasons, some of which are overlapping, individually or cumulatively lead me to the conclusion that the section 19 regime is not rationally connected to the legislative objective. First, I accept the complaint of the claimants that the Secretary of State has adopted a system by which all marriages of a party, who requires a COA, are to be regarded automatically as actual or potential marriages of convenience and some of the other factors which lead me to the conclusion that the section 19 regime is not rationally connected to the legislative objective and which are set out in paragraphs 87 to 89 below show the inflexibility of this regime. In other words, as the Joint Committee explains cogently and persuasively with emphasis added about what was then the proposed approach but which has now been implemented in the section 19 scheme:

“63.

The criteria which it has been suggested will be applied by the Secretary of State in deciding whether or not to approve of marriage in an individual case will not be based on the assessment of the genuineness of a marriage… The length of time for which a person has leave to remain in the UK, for example, has nothing to do with the genuineness or otherwise of any marriage into which he or she proposes to enter. This criterion will effectively operate as a statutory presumption that a marriage involving a person with less than six months leave to stay is not a genuine marriage. But there is no necessary of logical connection between the genuineness of a proposed marriage and the length or time which a person has leave to stay in the United Kingdom”.

A second reason why I do not believe that the regime is “rationally connected” to the objectives of preventing sham marriages is that it is difficult to understand in the light of the evidence adduced by the Secretary of State what basis there is for assuming and presuming that all marriages conducted in religious ceremonies other than Church of England marriages are automatically to be treated as “sham marriages” and so require a COA while in contrast all those marriages conducted according to Church of England rites are to be regarded as automatically not being sham marriages and thus do not require a COA.

It is true that Miss Bennett explains in her witness statement that IND:

“is aware of no evidence, however of sham marriages taking place according to the rules of the Church of England…. Couples who wish to marry in their parish church would normally be known to the minister. There is an expectation upon couples to meet with the minister and talk through why they wish to marry etc. It is considered that this acts as a real disincentive to parties in intending to engage in a sham marriage”.

Mr. Ian Robinson, the Family Policy Advisor at the Home Office explains in his witness statement the reasons why it was not regarded as necessary to extend the section 19 regime to Church of England ceremonies in this way:-

“12.

Prior to including the 2004 Act, consideration was given as to whether the requirements of the marriage provisions should be extended to include Church of England ceremonies after ecclesiastical preliminaries. The decision was taken that this was not necessary.

13.

Everyone has the right to marry for the first time in the parish in which they reside and banns are read out in the churches where both parties reside. The vicar has no authority to refuse to marry such a couple but he does have the right to determine the time and date of the wedding. Prior to the reading of the banns, he would also wish to interview the couple together and to question them so that he can be satisfied of their intentions towards each other. He can ask to see the couple on a number of occasions.

14.

Churches are often booked up for weddings and it could take many months between the couple first seeing the vicar and the marriage taking place. It is normal for couples to arrange a wedding many months in advance.

15.

This type of ceremony is unlikely to be used by those seeking to enter into sham marriages because of the close questioning of the vicar about the intentions of the couple towards each other; and the uncertainty of when the wedding might take place.

16.

The Archbishop’s Office stated that, as far as it is aware, there have been no problems reported by Church of England clergy that these ceremonies are being used for the purposes of sham marriages. No evidence suggests that these marriages have been, nor will be in the future, used to abuse the immigration system.

17.

It is believed that the reason for the lack of sham marriages is due in part to the need to plan church weddings some time in advance and because of the, sometimes intrusive, personal questioning of couples as to the nature of the relationship and their intentions towards one another.

18.

There are three methods, the first of which are “banns”, the second being by way of a special license from the Archbishop and the third, a common licence.

19.

Banns is where the public declaration of the intended marriage is read out in church on 3 successive Sundays.

20.

The second form of preliminary is the Archbishop’s special licence. A couple can apply for a special licence through the Archbishop’s faculty office when they wish to get married in another parish to where they are resident, in a place where banns may not be published or where they wish to get married quickly. For example, the couple may wish to marry in the parish where one of them was brought up, where their parents live or where one of them is a foreign national. It may also be a rushed marriage because one of the parties is dying. Applications can be dealt with quickly but they are closely scrutinised and a licence can be refused if inadequate reasons are given.

21.

The third form of ecclesiastical preliminary is a Common license. A clergyman in the diocese is appointed as a surrogate, to deputise for the bishop in the granting of common marriage licences. He will consider the granting of licenses in circumstances where, for example, one party is a foreign national and it is uncertain whether a purely religious ceremony will be recognised as valid in that person’s country. Only one party of the couple need apply to the surrogate and be questioned about the application.

22.

However, although there is no delay caused by the reading of banns with either the special licence or common licence, it is considered that those wishing to enter sham marriages are equally likely to be attracted to these provisions. The couple will still need to go to see the vicar of the parish and will be questioned about their intentions towards each other before an application for a license is made”.

There is a very noticeable and significant lacuna in the Secretary of State’s evidence because it does not explain why the section 19 regime should extend beyond Registry Office marriages (in respect of which there is evidence of sham marriages taking place) so as to include marriages conducted in religious ceremonies other than those in the Church of England about which there is no evidence that they have been used, are being used or will be used for sham marriages.

The significance of this lacuna in the Secretary of State’s evidence becomes a matter of greater concern when it is realised that many of the factors on which Mr Robinson relies as justifying exempting Anglican church marriages could or might also apply not only to other Christian church services (whether Catholic, Methodist, Presbyterian or Baptist) but also to all religious marriages conducted by the appropriate official in, for example, Mosques, Hindu Temples and synagogues. It is quite likely that in relation to such religious ceremonies that the matters considered as justifying exempting Anglican Church marriages might also apply to such ceremonies because;

It is noteworthy that there is no evidence explaining why these factors do not apply to the many other such non- Anglican religious ceremonies, which many people covered by the new regime might wish to use. I cannot conceal my surprise that there was, for example, no evidence of any inquiries being made by Home Office officials about the number of sham marriages occurring when the parties marry in non-Anglican religious ceremonies. In other words, it is not clear why those using an Anglican Church ceremony would be less likely to engage in a sham marriage than those who use, say, Presbyterian, Catholic, Jewish, Hindu or Muslim religious ceremonies. This omission is particularly noteworthy because in a witness statement made by Mr. Amitkumar Sachdev, a solicitor having the care and conduct of Mrs. Tilki’s case,

This witness statement was made on 14 October 2005 (which was more that three months before the present hearing) and many of the witness statements relied on by the Home Office officials were made in January 2006 and yet they do not deal with or rebut any of the evidence of Mr. Antikumar Sachdev. If these non-Anglican religious ceremonies were used for some sham marriages, I would have expected the Secretary of State to have put that evidence before the court. Indeed I was left with the clear impression that very surprisingly and for no apparent reason ,the Secretary of State and his officials had not even considered, let alone investigated whether sham marriages took place in non- Anglican religious ceremonies but had merely assumed that sham marriages took place in them.

Irrespective of whether the burden is on the Secretary of State or on the claimants to prove that the new regime is “rationally connected” to the legislative objectives, my conclusion is that by including in the new regime all those who get married in any non-Anglican religious ceremonies while excluding for no apparent reason those who get married in Anglican religious ceremonies, the new regime is not “rationally connected” to the legislative objectives, especially in the absence of any evidence or even any assertion that those who married in non-Anglican religious marriages engaged in sham marriages. This is a very surprising, and some may say also an alarming, omission bearing in mind that because of their places of birth, it is very likely that many of those non-EU nationals or their partners are likely to be members of religions other than of the Church of England. Thus I am driven to the conclusion that the failure of the Secretary of State to consider or investigate whether any marriages entered into in non -Anglican religious ceremonies should be included in the section 19 regime or to justify this decision means that the measures in the regime are not rationally connected to it.

A third reason why I have concluded that the new section 19 regime is not rationally connected to the legislative objectives of avoiding sham marriages is that it arbitrarily fails to take into account many factors which might be relevant to considering whether a proposed marriage is a sham, such as clear and corroborated evidence that the parties have enjoyed a loving relationship over a number of years during which they might have had children and might have bought a house together. It is difficult to see why the new regime, which ignores factors such as this, can be “rationally connected” to the legislative aim of avoiding sham marriages. It is noticeable that there is a marked difference between the section 19 regime and the provisions for preventing sham marriages which were the subject of the decisions in Sanders (supra) and in Klip and Kruger (supra) in which the countries concerned have systems where an investigation takes place in which there is a basis for suspecting that the marriage is a sham so that the authorities thereafter would only prevent marriages taking place, which they can show to be sham marriages. In other words, those countries carry out an investigation and then reach a fact sensitive decision on whether the particular marriage is a sham marriage.

Fourth, the new regime is not rationally connected to the legislative objective as it regards the only and crucial relevant factors in determining whether a non EU national can marry in this country as his or her immigration status or the length of an outstanding application or appeal in the light of the Secretary of State’s policy in the Guidance to which I referred in paragraphs 14 above. This factor automatically and inevitably trumps all other factors, save in the rare cases where compassionate factors are present. There is no evidence or cogent assertion which shows that it is those with less than 3 months leave to remain are more likely to enter into sham marriages than those with more than say 5 or 10 months leave to remain. I appreciate that as I explained in paragraphs 14 and 15 above the evidence is that the requirement that the applicant should have three months leave remaining at the time of the application is necessary to ensure that the applicant is lawfully present in the United Kingdom for long enough to enable his application for first the COA to be processed, second the outcome communicated to him, third the marriage to take place and fourth the application for leave to remain on the basis of the marriage to be made. This reasoning fails to take into account the fact that the applicant might have extremely strong prospects of having his or her leave to remain extended and yet that person would probably have to go abroad to make an application with all the additional costs, disruption and delay that this will cause.

Fifth, the regime does not permit those with less than 3 months leave to remain to make any representations or to put forward any factors (other than compassionate factors) which might enable them to obtain a certificate of ‘approval’. If a regime was “rationally connected” to the legislative intent, it would surely have permitted persons affected to explain why they should receive a dispensation because for example they could show that they enjoyed a longstanding loving relationship. As I have concluded for the reasons which I have set out, the measures in the regime designed to meet the legislative objectives are not rationally connected to it, and so it follows that the regime is not proportionate and that it constitutes an infringement of Article 12 rights.

It is noteworthy, as Mr. Drabble submits, that none of the Strasbourg case law reveals a legal system which refuses to allow a marriage within its territory where the marriage is genuine and not a sham. In the cases of Sanders (supra) and of Klip and Kruger (supra), the countries concerned have systems where an investigation takes place in which there is a basis for suspecting that the marriage is a sham. These investigations are conducted by a state counsel or a public prosecutor.

In reaching my conclusions, I have borne in mind first the virtual impossibility of devising a scheme which does not affect more people than is absolutely necessary, and second the substantial degree of deference, which has to be accorded by the court to the legislature and the executive for the reasons, which I have set out in paragraphs 60 to 63 above. Unfortunately 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. Thus the measures in the section 19 regime are not rationally connected to it and that means that they are not proportionate. In reaching this conclusion I have borne in mind the substantial degree of deference owed by the courts to the legislative and the executive to which I have already referred in paragraphs 60 to 63 above but that deference is not wide enough to show that the regime is wide enough to meet the legislative objects.. In addition, I had been in any doubt about this conclusion (which I am not ), I do not consider that deference is actually owed to the Secretary of State when he has reached a decision as he apparently did in this case affecting many people without first considering whether non- Anglican religious ceremonies were used for sham marriages. or were likely in the future to be used for such marriages. In other words, the basis of deference is that the person to whom deference is owed has used his special knowledge or position to make a decision while deference has no role where the decision-maker has simply not considered something, which is apparently the position here.

I should add that the claimants contend that there are other aspects of the section 19 regime designed to meet the legislative objects, which are not rationally connected to it and, in particular, the fee of £135 charged for each COA and the limited number of registry offices in which parties covered by the scheme can marry. I originally was unable to accept this complaint because there is a clear and rational connection between the fee provisions and the wish to prevent sham marriages. On the day when judgment was handed down, I explained that I had realized that the requirement of the fee was not rationally connected to the legislative objectives for the same reasons which led me to conclude that other parts of the regime were not rationally connected to the legislative and I have already set out those reasons. I need not determine in the absence of fuller argument on this issue if the reduction in the number of registry offices in which those with limited rights of residence can marry is rationally connected with the legislative object. Of course the fact that these aspects of the section 19 regime have a clear and rational connection with the wish to prevent sham marriages does not mean that they are proportionate unless they are also necessary to accomplish the legislative object of avoiding sham marriages, which is the issue to which I now turn.

Are the means used in the new regime necessary to accomplish that objective?

As I have heard submissions on this issue, I will comment on it although my conclusions on it are academic because for the reasons, which I have just explained in paragraphs 78 to 91 above, the regime does not satisfy the requirement of being proportionate. The case for the Secretary of State on this issue is that the section 19 scheme is necessary to accomplish the objective of preventing sham marriages as it is clearly and carefully targeted at preventing marriages entered into for the purpose of evading immigration control.

Miss Carss-Frisk stresses first that the new regime applies only to persons subject to immigration control and second that marriages pursuant to ecclesiastical preliminaries in Anglican marriages are excluded from its provisions as there is no evidence of sham marriages being contracted in this way in contrast with the widespread problem of sham registry office marriages.

She also points out that, where the party subject to immigration control is settled in the United Kingdom by having indefinite leave to remain here and is ordinarily resident here, by being specified in the 2005 Regulations, he or she is exempted from the need to obtain an entry clearance or a COA. It is significant according to Miss Carss-Frisk that for a person with indefinite leave to remain here there is no immigration benefit to be achieved from the marriage as such persons do not need to marry in order to better their immigration status here. Therefore it is clear that such a marriage cannot be intended solely for the purpose of avoiding immigration law.

Miss Carss-Frisk submits that the effect of the regime is to impose additional requirements in relation to marriage for persons, who are in the United Kingdom unlawfully or on a short-term basis with the evidence suggesting that the majority of sham marriages are entered into by such persons as has been explained by Mr Robinson. Such persons, she submits, will generally be required to return home to obtain an appropriate entry clearance in order to marry here. These requirements will, she contends, make it more difficult for those who would seek to marry for the purposes of avoiding immigration control to do so and the conditions set out in the section 19 regime are “necessary” to accomplish the legislative objective.

Miss Carss-Frisk states that on those occasions where both parties are subject to immigration control, there may appear to be no immediate immigration advantage to either party of marrying in the United Kingdom, as was the position for Mr Bigoku and Ms Agolli to whom COAs have now been granted. However, it is clear according to Miss Carss-Frisk that where one partner has an outstanding asylum application (as did Mr Bigoku) or some form of limited leave here (as did Ms Agolli), an immigration advantage to his or her spouse may materialise in due course. As I have explained in paragraph 30 above, the parties have asked me at this stage to resolve issues which are not factually sensitive to the claims of the particular claimants in the present case.

Before dealing with the claimants’ contentions that the means used by the Secretary of State go far further than is necessary to achieve the objectives of preventing sham marriages, it is necessary to bear in mind that I am being asked to appraise matters of which the legislature and the executive have much greater knowledge than the courts would have. Thus, I approach the claimants’ submissions on the basis that I should be reluctant to interfere with a decision made by Parliament. The role of the courts on this issue was explained by Lord Nicholls of Birkenhead in Wilson’s case (supra) at page 844 in this way:

“70.

In approaching this issue, as noted in R v Johnstone [2003] 1WLR 1736, 1750, Para 51, courts should have in mind that theirs is a reviewing role. Parliament is charged with the primary responsibility for deciding whether the means chosen to deal with a social problem are both necessary and appropriate. Assessment of the advantages and disadvantages of the various legislative alternatives is primarily a matter for Parliament. The possible existence of alternative solutions does not in itself render the contested legislation unjustified: see the Rent Act case of Mellacher v Austria (1989) 12 EHRR 391, 411, para 53. The court will reach a different conclusion from the legislature only when it is apparent that the legislature has attached insufficient importance to a person’s Convention right. The readiness of a court to depart from the views of the legislature depends upon the circumstances, one of which is the subject matter of the legislation. The more the legislation concerns matters of broad social policy, the less ready will be a court to intervene”.

The section 19 regime concerns the need to prevent sham marriages taking place and this purpose can properly be classified as a matter of broad social policy. Thus in accordance with Lord Nicholls’ guidance, the courts should be “less ready” to intervene. With this approach and the substantial degree of deference due to the Secretary of State and the legislature firmly in mind, I turn to the claimants’ contention which is that the means used in the section 19 regime go beyond what is necessary to accomplish the legislative objective of preventing sham marriages. The claimants’ first complaint is that the regime fails to show that any consideration was given to the question of whether sham marriages take place under the guise of religious ceremonies conducted other than under the Church of England’s regime and that it is unnecessary and erroneous to assume that non-Anglican religious marriages, should be treated with suspicion . This is a similar, but not an identical, submission to the one which I have already considered and accepted in paragraphs 79 to 86 above on the treatment of non-Anglican religious marriages, which was relevant to the issue of whether the measures in the new regime are rationally connected to it.

I have explained in paragraphs 79 to 86 above my reasons for concluding that the measures in the new regime are not rationally connected with the legislative intent because of among other things the approach to non-Anglican religious ceremonies by treating them in the same suspicious way as marriages in Registry Offices. These same reasons show why the measures in the section 19 regime go well beyond what is necessary to achieve the legislative objective. In essence, the basis of this conclusion is the absence of any evidence showing first that non- Anglican religious ceremonies are used for sham marriages or second that there has not been any consideration of whether such ceremonies have been used or are likely to be used for sham marriages. So even after taking into account not only Lord Nicholls’ direction set out in paragraph 98 above but also the fact that it is not possible to devise schemes which will not mean that only the people targeted will be adversely affected, I conclude that the present regime does go beyond what is necessary to achieve the legislative objective essentially for the reasons set out in paragraphs 79 to 86 above.

The second complaint of the claimants relates to the Home Office’s failure to carry out any scrutiny of applications for COAs in the United Kingdom because it automatically refuses applications where the applicant has limited right to remain in the absence of compassionate factors. As I have explained, the present regime does not entail any consideration of the merits of the application for a COA other than some investigation to determine whether there are compassionate reasons for not requiring one of the parties to return to their home country to get married.

The Secretary of State’s evidence seeks to justify this aspect of the present regime on the basis that:

These matters constitute powerful factors for the reasons explained by Lord Nicholls in the passage to which I referred in paragraph 98 above, but the claimants contend that the Secretary of State should carry out some form of pre-marital scrutiny in the United Kingdom to determine the genuineness of the marriage. It is pointed out by Mr. Amitkumar Sachdev the solicitor for the claimants in his witness statement that there is a form or questionnaire (FLR (M)), which I will refer to by those letters), which all applicants have to complete and send to IND for the Secretary of State to determine whether an extension of stay should be granted as a spouse or as a civil partner resident in the United Kingdom. Mr. Sachdev explains that not only is this form sufficiently comprehensive to enable an immigration officer to determine if the marriage is genuine and not a sham marriage but also that further testing can be and is undertaken by requests from IND for further information, interviews or visits to the couple carried out without prior notice.

According to Mr. Sachdev, this system is working efficiently and resourcefully with the majority of applicants for leave to remain on the basis of marriage being granted and only 8% being refused. Thus, the case for the claimants is that this system could and should be allowed to operate with this form of effective post-marriage scrutiny instead of the section 19 regime. It is noteworthy that the application form for the COA is significantly less detailed than the FLR (M) form but, as Miss Bennett has explained, IND does not consider the merits of each application for a COA but instead it merely considers the immigration status of the applicant and compassionate factors.

A feature of the new regime is that the time and place for scrutinising the genuineness of the marriage is not in the United Kingdom after the marriage pursuant to the FLR (M) regime but is instead carried out outside the United Kingdom before the marriage. I am concerned by the requirement for the applicants to have to leave the United Kingdom for a form of scrutiny of their application, which could just as easily take place in the United Kingdom without the disruption and expense caused by the need for the parties to have to go abroad and to apply at which time the genuineness of the marriage would have to be scrutinised.

Many of the factors which I have set out in paragraphs 78 to 92 above as showing why the measures in the section 19 regime designed to meet the legislative objective are not “rationally connected” to it are all relevant in showing why the means used in this regime are arguably more “than is necessary to accomplish that objective”. Against this is the significant fact that the existence of the section 19 regime is likely to deter many from seeking to enter sham marriages.

It is important not to lose sight of the important fact that the regime under challenge relates to immigration policy, which in itself entails what Lord Nicholls described as “matters of broad social policy”. In consequence, in considering the issue of whether the means used in the new regime are necessary to accomplish the legislative objective, the legislature is entitled to a substantial degree of deference or put in another way a substantial reluctance on my part to intervene unless the circumstances demand it. At the end of the day, I concluded that as I have already found that the section 19 regime was not a proportionate interference with article 12 rights for the reasons which I have sought to explain in this judgement, it is unnecessary for me to reach a definite conclusion on whether the section 19 regime goes further that is necessary to accomplish the legislative objective of reducing sham marriages by not including a system of pre-marital scrutiny.

As I have explained, the third complaint of the claimants relates to the sum of £135 charged for each COA application, which I have already explained in paragraph 92 is not rationally connected to the legislative objective. In case I am wrong on this, I should add that I consider that this charge cannot be regarded as more than is necessary to accomplish the legislative object of preventing sham marriages bearing in mind first as Lord Nicholls has explained in the speech quoted in paragraph 98 above the limited reviewing role for courts when legislation concerns matters of “broad social policy”, second the need for the Secretary of State to recover the cost of the COAs required by section 19 scheme in accordance with Treasury guidelines and third the fact that many other immigration applications require payment from the applicants . The form FLR (M), which has to be used by applicants for an extension of their stay in the United Kingdom as a spouse or an unmarried partner of a person present and resident in the United Kingdom and which is referred to by Mr. Sachdev and exhibited to his second witness statement requires a payment of £335 for applications made by post and of £500 for applications made in person at one of the Public Enquiry Offices.

A further complaint is that there are only a limited number of registry offices in which persons can marry but there is no evidence of how this causes hardship. In any event, there is nothing objectionable about this as the article 12 right does not mean that a party can choose where he or she is to marry in the United Kingdom. As I explained in paragraph 56 above, the Commission has held that the article 12 right “does not guarantee the right to marry in a particular country”, still less in a particular area in any country.

Conclusions on the Article 12 claim

Even taking into account the substantial deference due to the Secretary of State and to the legislature, the article 12 claim succeeds as the section 19 regime is not proportionate and it constitutes a substantial interference with article 12 rights. I await further submissions on what relief any of the claimants are entitled to in the light of this conclusion.

Introduction

It is contended by the claimants and the JCWI that the section 19 regime infringes article 14 of the ECHR which provides that:

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”.

It is common ground between all the parties first that an article 14 claim requires the facts only to fall within the ambit of one or more of the substantive convention rights and second that in this case, the facts and claims fall within the ambit of articles 12, 8 and 9 of the ECHR although as I have explained in paragraph 7 above, the main thrust of the case against the Secretary of State is based on article 12.

A major submission of the claimants is that the restrictions on the right to marry contained in the new regime apply only to marriages in the Church of England under Part II of the Marriage Act. The claimants’ submission is it is significant that for the purposes of the present application that in sharp contrast to the position in relation to marriages in the Church of England under Part II of the Marriage Act, the restrictions in the section 19 regime apply to all other marriages whether conducted with or without a religious ceremony.

The case for the claimants is that the marriage regime is discriminatory because it treats differently people, who are in otherwise analogous positions and that the reason for those differences is because of the religion or nationality of the claimants.

The Secretary of State accepts that the section 19 regime:

The Secretary of State disputes that article 14 constitutes direct discrimination and contends that any discrimination, which may exist, can be justified on the grounds of immigration control .The difference between direct and indirect discrimination is that indirect discrimination results from a rule or practice applied equally to all individuals without differentiation but which has a proportionate and unjustified adverse impact on members of a particular group or minority. Both types of discrimination require justification and so it does not matter if the discrimination in question is direct or indirect discrimination. The claimants contend that the discrimination in this case is direct and unjustified and they also dispute the further submission of Miss Carss-Frisk that particularly weighty reasons are not required to justify discrimination on grounds of religion and nationality.

The issues between the parties on the article 14 claim are:

What is the proper approach to the Article 14 claim?

The traditional approach in considering an article 14 claim has been to ask the four well-known questions, which were formulated by Brooke LJ in Wandsworth London Borough Council v Michalak [2003] 1WLR 613, 625:

This test was reconsidered by the House of Lords in R (Carson) v Secretary of State for Work and Pensions [2005] 2 WLR 1369 in which Lord Hoffmann said:

“29.

Brooke LJ took these questions from the analysis of the European jurisprudence in Grosz, Beatson and Duffy's Human Rights: The 1998 Act and the European Convention, (2000) para C14-08. They are no doubt an accurate taxonomy of the various issues decided by the Strasbourg court. But I am not sure that they are always helpful as a framework for reasoning. Question (i) reflects the fact that article 14 is confined to discrimination as to a list of particular matters and, as Stanley Burnton J said in this case [2002] 3 All ER 994, 1010, para 52 it would be logical to add the question of whether the discrimination was on one of the specified grounds. Unless the claim satisfies these requirements, article 14 is not engaged at all. Question (ii) identifies the nature of the claimant's case. It identifies the real or hypothetical person in comparison with whom he complains he is being treated differently.

30.

The real difficulty about the questions is the apparent overlap between questions (iii) and (iv). If an "analogous situation" in question (iii) means that the two cases are not relevantly different (no two cases will ever be exactly the same) then a relevant difference may be the justification for the difference in treatment. In what kind of case does one go on to question (iv) and ask separately about justification? Laws LJ [2003] 3 All ER 577, 604, para 61 suggested that it might clarify matters to substitute for question (iii) a "compendious question":

"Are the circumstances of X and Y so similar as to call (in the mind of a rational and fair-minded person) for a positive justification for the less favourable treatment of Y in comparison with X".

31.

But in my opinion there are two difficulties about this formulation. First, it appears to reduce question (iii) to asking whether there is, so to speak, a prima facie case of discrimination (do the facts "call for" a justification) and to treat question (iv) as dealing with whether the call has been answered. But this division of the reasoning into two stages is artificial. People don't think that way. There is a single question: is there enough of a relevant difference between X and Y to justify different treatment? Secondly, the invocation of the "rational and fair-minded person" (who is, of course, the judge) suggests that the decision as to whether the differences are sufficient to justify a difference in treatment will always be a matter for the judge. In many cases, however, the decision will be a matter for Parliament or the discretion of the official entrusted with statutory powers.

32.It might be more logical to confine question (iv) to justification for different treatment of cases which were not relevantly different, e.g. to achieve some legitimate teleological or administrative purpose, such as correcting the effect of past discrimination or the administrative convenience of having clear distinctions. That would explain why in such cases the courts insist that the discrimination must be necessary and proportionate for the object to be achieved. But neither the Strasbourg court nor the English courts have approached the matter in this way (in Michalak itself, Brooke LJ regarded the fact that near relatives were relevantly different from distant relatives as an answer to question (iv) rather than question (iii)) and it is certainly not expressed in the formulation of the questions.

33.

For these reasons I have found it better not to use the Michalak framework”.

In the same case Lord Nicholls of Birkenhead said:

“3.

For my part, in company with all your Lordships, I prefer to keep formulation of the relevant issues in these cases as simple and non-technical as possible. Article 14 does not apply unless the alleged discrimination is in connection with a Convention right and on a ground stated in article 14. If this prerequisite is satisfied, the essential question for the court is whether the alleged discrimination, that is, the difference in treatment of which complaint is made, can withstand scrutiny. Sometime the answer to this question will be plain. There may be such an obvious, relevant difference between the claimant and those with whom he seeks to compare himself that their situations cannot be regarded as analogous. Sometimes, where the position is not so clear, a different approach is called for. Then the court's scrutiny may best be directed at considering whether the differentiation has a legitimate aim and whether the means chosen to achieve the aim is appropriate and not disproportionate in its adverse impact”.

Lord Walker of Gestingthorpe explained in the Carson case that:

“64.

My Lords, I think the time has come to say that in cases on Article 14 the Michalak catechism, even in a corrected form is not always the best approach”.

Miss Carss-Frisk contends that the proper questions which should be asked in this case in respect of the article 14 claim are first whether the two comparators are in relevantly similar positions because if they are not, there is no question of discrimination but if they are, the second question is whether the distinction is justifiable. Mr Drabble prefers the single question set out by Lord Hoffmann namely “is there enough of a relevant difference between x and y to justify different treatment?”

As I will explain, it does not matter which of these tests or if the Michalak test is applied because the outcome is identical whichever test is adopted.

What degree of scrutiny is required?

It is common ground that there are some categories of discrimination which because of their nature have the consequence that any purported justification for them has to be subject not to the ordinary degree of scrutiny but to particularly severe scrutiny The claimants contend that discrimination on grounds of religion and nationality are such “suspect” grounds of discrimination that the court will subject them to particular severe scrutiny. This view is challenged by Miss Carss-Frisk, who contends that religion and nationality do not fall within these special categories, which require particularly severe scrutiny and that there is no authority to support the contrary view.

This issue was considered recently by Lord Walker in the Carson case where he said that:

“55.The proposition that not all possible grounds of discrimination are equally potent is not very clearly spelled out in the jurisprudence of the Strasbourg Court. It appears much more clearly in the jurisprudence of the United States Supreme Court, which in applying the equal protection clause of the 14th Amendment has developed a doctrine of "suspect" grounds of discrimination which the court will subject to particularly severe scrutiny. They are personal characteristics (including sex, race and sexual orientation) which an individual cannot change (apart from the wholly exceptional case of transsexual gender reassignment) and which, if used as a ground for discrimination, are recognised as particularly demeaning for the victim”

He then went on to state about the distinctions set out in the American jurisprudence:

“57.

As I have said, these distinctions are not so clearly signalled in the jurisprudence of the European Court of Human Rights. But Mr Howell QC (for the respondent Secretary of State) submitted, in my opinion correctly, that the equivalent doctrine is to be found there. Where there is an allegation that article 14 has been infringed by discrimination on one of the most sensitive grounds, severe scrutiny is called for. As my noble and learned friend, Lord Nicholls of Birkenhead put it in Ghaidan v Godin-Mendoza [2004] 2 AC 557, 568, para 19:

". . . where the alleged violation comprises differential treatment based on grounds such as race or sex or sexual orientation the court will scrutinise with intensity any reasons said to constitute justification. The reasons must be cogent if such differential treatment is to be justified."

58.

In its judgments the European Court of Human Rights often refers to "very weighty reasons" being required to justify discrimination on these particularly sensitive grounds. This appears, for instance (in relation to cases of discrimination on the ground of sex) in Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471, 501, para 78; Schmidt v Germany (1994) 18 EHRR 513, 527, para 24; Van Raalte v Netherlands (1997) 24 EHRR 503, 518-519, para 39. When Harris, O'Boyle and Warbrick's valuable work, Law of the European Convention on Human Rights, was published in 1995, the authors recognised that the Strasbourg Court had its own suspect categories, identifying them as discrimination on the grounds of race, gender or illegitimacy. Since then religion, nationality and sexual orientation have, it seems, been added: see Jacobs and White, European Law of Human Rights, 3rd ed (2002), pp 355-6, citing Hoffmann v Austria (1994) 17 EHRR 293, 316, para 36; Gaygusuz v Austria (1997) 23 EHRR 364, 381, para 42 and Salgueiro da Silva Mouta v Portugal (2001) 31 EHRR 1055, 1071, para 36. Where an individual lives is in principle a matter of choice. So although it can be regarded as a personal characteristic it is not immutable. Nor is there anything intrinsically demeaning about an individual's place of residence. Social or business practices which amount to what is sometimes called a "postcode lottery" might, if devoid of any rational basis, constitute discrimination. But that is not this case”.

Miss Carss-Frisk contends that authorities relied on by Lord Walker as showing that very weighty reasons are required to justify discrimination on grounds of religion and nationality do not support his conclusion. So it becomes necessary to consider them starting with the case of discrimination on grounds of religion.

The only relevant case on this issue cited by Lord Walker is the Hoffmann case (supra) in which the issue was whether the decision of the Austrian Supreme Court to award parental rights over children to their father in preference to the mother because she was a member of the religious committee of Jehovah’s witnesses was in violation of the other’s rights under article 8 of the Convention when those rights are considered separately or when read in conjunction with Article 14.

In its judgment, the Strasbourg Court said with emphasis added that:

“ 33. The European Court therefore accepts that there has been a difference in treatment and that that difference was on the grounds of religion; this conclusion is supported by the tone and phrasing of the Supreme Court’s considerations regarding the practical effects of the applicant’s religion. Such a difference in treatment is discriminatory in the absence of an “objective and reasonable justification” that is, if it is not justified by a “legitimate aim” and if there is no “reasonable relationship of proportionality between the means employed and the aims thought to be realised….

36.

…Notwithstanding any possible arguments to the contrary, a decision based essentially on a difference of religion alone is not acceptable. The court therefore cannot find that a reasonable relationship of proportionality existed between the means employed and the aim of pursuit; there has accordingly been a breach of Article 8 taken in conjunction with Article 14”.

I agree with Miss Carss-Frisk that it is noteworthy that in this passage, the Strasbourg Court does not refer expressly and specifically, as it frequently does, to the need for “very weighty reasons”. She also says that she has been unable to find any case which would support such a proposition. Nevertheless, in my view there are a number of factors which lead to the conclusion that discrimination on grounds of religion does require very weighty reasons to justify it. First, the words which I have emphasised in the quotation in the last paragraph are significant and I agree with Lord Lester QC and Mr David Pannick QC , who rely on those words to conclude in Human Rights Law and Practice, Second edition (2004) paragraph 4.14.39 that:

“in particular “very weighty reasons” will be required by a state to justify discrimination on the grounds of ... religion...”

Second, as Lord Walker has explained, it is not easy to understand why a different approach should be adopted to justify discrimination on grounds of religion than say discrimination on grounds of race or sex. Membership of a religion is a personal characteristic, which in Lord Walker’s words, is one which “if used as a ground for discrimination, [is] recognised as particularly demeaning for the victim”. In my view discrimination on grounds of religion is very different from many of the categories of discrimination which do not require very weighty reasons to justify them, such as discrimination because of trade union membership. A third reason is that it would be strange if “very weighty reasons” were required to justify discrimination on grounds of race but not on the closely associated ground of discrimination on grounds of religion as there is an obvious and frequent factual overlap between these two forms of discrimination. Fourth, as I will explain in paragraph 133 below, very weighty reasons are required to justify discrimination on grounds of nationality and there is no sound reason why discrimination on grounds of religion should be treated differently from this.

In reaching this conclusion, I have not overlooked the contention on behalf of the Secretary of State that the court has to bear in mind the historical relationship between the state and a particular established religion in determining whether different treatment between different religions if justified. Those submissions might be relevant on justification but not on whether “very weighty reasons” are required. I will return to consider them in paragraph 148 below.

What degree of scrutiny is required in respect of an article 14 claim based on discrimination on grounds of nationality?

It will be recollected that when considering which factors are now included in the list which require “very weighty reasons”, Lord Walker said in Carson that

“58.

…Since [1995] nationality ... [has] it seems been added”.

As I will explain even if “very weighty reasons” were not required, I would still find that there was no discrimination. I consider that “very weighty reasons” are required to justify discrimination on grounds of nationality in the light of the statement by the Strasbourg Court in Gaygusuz v Austria [1996] 23 EHRR 364 that:

“42…very weighty reasons would have to be put forward before the court could regard a difference of treatment based exclusively on the grounds of nationality as compatible with the Convention”.

Does the section 19 regime constitute discrimination on grounds of religion or of nationality?

The claimants contend that the section 19 scheme is discriminatory because of its application to all those unable or unwilling to marry in an Anglican religious ceremony while it does not apply to those, who intend to marry in such a ceremony. The aspects of the section 19 regime which are being challenged are first the requirement for a COA, second the policy of refusing a COA based upon immigration status regardless of whether there is evidence that in an individual case the marriage is not a sham marriage but is a genuine marriage and third the requirements of a fee and to give notice in a designated registry district.

Miss Carss-Frisk accepts correctly that the section 19 regime involves a distinction between marriages conducted according to the rites of the Church of England and other marriages whether conducted pursuant to religious rites or otherwise. The Secretary of State also accepts that the section 19 regime may have an indirectly discriminatory effect on persons of non-British nationality because they are less likely to marry according to the rites of the Church of England. Miss Carss-Frisk accepts correctly in my view that article 14 is capable of applying to indirect discrimination as well as to direct discrimination in the light of the decision of the Strasbourg Court in Thlimmenos v Greece (2001) ECHR 411.

It is clear and conceded by Miss Carss-Frisk that by its very nature the section 19 scheme discriminates on grounds of immigration status because it only applies to persons who are subject to immigration control wanting to marry in the United Kingdom.

In my view, the section 19 regime constitutes direct discrimination as the group being targeted by that scheme as requiring COAs are those who because of their religious convictions or lack of them are unable or unwilling to marry pursuant to the rites of the Church of England while those who wish to marry pursuant to those rights are exempted from the scheme. By the same token, there is discrimination of grounds of nationality. It does not matter if this conclusion is incorrect because even if this was a case of indirect discrimination, justification would still be required. Furthermore the fact that the claimants have to pay the fee of £135 is discriminatory as this fee is not levied on those who have the same characteristics as the claimants but who marry in Anglican religious ceremonies.

Is the discrimination justified in the interests of immigration control?

It is necessary to bear in mind that on issues of justification, the Secretary of State and the legislature are entitled to a margin of deference with its width depending on the circumstances and the subject matter of the issues under consideration. The margin of appreciation is similar to the discretionary area of judgment afforded to the legislature and which I considered in paragraph 60 to 63 above. Indeed I consider that the deference is also substantial for the reasons set out in those paragraphs. For the purposes of this section, I will initially consider the justification issue not on the basis first that “very weighty reasons” are required but that ordinary reasons would suffice and second that substantial deference is due to the Secretary of State and to the legislature.

Miss Carss-Frisk is correct to contend that the principle of equality of treatment is not violated first where there is a reasonable and objective justification for the distinction in question and second where the means employed are proportionate to the aim sought to be realised. Her contentions are that the section 19 regime can be justified on the grounds of immigration control and that it is proportionate but these submissions are disputed by the claimants and the JCWI.

The case for the Secretary of State is that the section 19 regime is based on objective considerations, which show that there is a significant incidence of marriages entered into pursuant to civil preliminaries for the purpose of evading immigration controls and I have already summarised this evidence in paragraphs 80 and 81 above. Miss Carss-Frisk points out the evidence which shows that marriages entered into pursuant to the rites of the Church of England are not being used for sham marriages. So she contends that the scope of the section 19 regime has been determined on the basis of objective evidence.

I am unable to agree because these factors do not constitute adequate reasons, let alone very weighty reasons justifying for the difference between those marrying pursuant to Anglican rites and those who marry in any other religious ceremonies. As I explained in paragraphs 80 and 81 above when concluding that the section 19 regime’s interference with the claimants’ article 12 claims was not proportionate, the evidence adduced on behalf of the Secretary of State merely explains that there is no evidence that sham marriages take place in Anglican religious ceremonies.

There is also evidence which shows that many sham marriages take place in Registry Offices but what is crucial on this issue is that there is no material which shows why non-Anglican religious marriages are sham marriages or that they ought to be treated or should be treated in the same way. In other words, there is no evidence which explains why non-Anglican religious ceremonies should be treated differently from marriages pursuant to Anglican rites. This conclusion would be enough in itself to show that there is no reasonable and objective justification for the distinction in the treatment of marriage pursuant to Anglican rites and other religious marriages with the consequence that the article 14 claim must succeed.

There are four further reasons or alternative reasons, which individually or cumulatively support that conclusion even on the basis that substantial deference is due to the Secretary of State and to the legislature. First, as I explained in paragraph 83 and 84 above, I consider that the reasons put forward by Miss Bennett as explaining why marriages pursuant to Anglican rites are unlikely to be used for sham marriages are likely to be applicable to other religious ceremonies. Moreover as I explained in paragraph 84 above, there is cogent and uncontested evidence in Mr. Antikumar Sachdev’s witness statement that many of the features which are said to prevent Anglican religious marriages being used for sham marriages are also to be found in Hindu and Sikh marriages. This supports my conclusion that there is no reasonable and objective justification for the difference between Anglican religious marriages and other religious marriages.

Second, until now, I have only been looking to ascertain if there are any reasons to justify the different treatment for non Anglican religious marriages from marriages pursuant to Anglican rites but as I explained in paragraphs 130 and 130 above, “very weighty reasons” are required to justify discrimination on grounds of religion. The application of that test would mean that this would constitute an additional reason for concluding that there is no reasonable and objective justification for the difference between Anglican religious marriages and other religious marriages.

Third, the apparent failure of the Secretary of State to consider whether those seeking to engage in sham marriages have used or are likely to use non-Anglican religious ceremonies means that the section 19 regime is not proportionate for the reasons explained in respect of article 12 in paragraphs 78 to 92 and 100 above. In other words, the section 19 regime is not rationally connected to the objective of reducing or eliminating sham marriages and the means used by the Secretary of State are more than is necessary to accomplish that objective. This would constitute an additional reason for finding that the section 19 regime infringes article 14 rights. Finally, for the reason set out in the last two sentences of paragraph 91, I doubt if deference is due to the Secretary of State when an important issue of whether non-Anglican religious marriages was apparently not the subject of consideration.

The claim for discrimination based on nationality arises because by its nature the section 19 regime discriminates against those who do not have British nationality. I agree with the claimants and the JCWI that there is no reasonable and objective justification for the difference between Anglican religious marriages and other religious marriages essentially for the same reasons as I have explained in paragraphs 78 to 92 and 100 above in respect of the claim based on religious discrimination. The three additional or alternative grounds set out in paragraphs 143 to 145 also apply to the issue of justification on grounds of nationality.

By the same token, I have concluded that on the issue of proportionality, the section 19 regime is not proportionate for the reasons explained in respect of article 12 in paragraphs 78 to 92 and 100 above. My reasoning is that the section 1 9 regime is not rationally connected to the objective of reducing or eliminating sham marriages and the means used by the Secretary of State are more than is necessary to accomplish that objective.

Miss Carss-Frisk contends that the historical link between a state and its particular established religion provides some justification for the difference in treatment between marriages conducted pursuant to the Anglican religious ceremonies and other marriages. I am unable to accept this submission because the justification put forward in the witness statements of the Home Office officials is not based on the historical connection between the Anglican Church and the state but instead, it is based on a completely different factor namely that Anglican religious ceremonies are not used for sham marriages. Indeed if Miss Carss-Frisk was correct, it would mean that any discrimination in favour of Anglicans or Anglican services would be prima facie lawful. Of course there may be cases where for historical reasons, some special treatment of the established religion may be justifiable but that is not the justification relied on in this case by the Secretary of State. None of the cases relied on by Miss Carss-Frisk on this issue are relevant to the basis of the justification claim put forward in the witness statements of the Home Office Officials.

Conclusions on the Article 14 claim

I must now apply the different tests suggested for determining if article 14 rights have been infringed. First, the test advocated by Miss Carss-Frisk and set out in paragraph 122 above produces the result that those who wish to marry in an Anglican religious ceremony and those who wish to marry in a non- Anglican religious ceremony are in similar positions but the distinction between them is not justifiable as there is no evidence that those who marry in non-Anglican religious ceremonies are more likely to engage in sham marriages than those who marry in Anglican religious marriages. In addition, the reason for the distinction is based on grounds of religion and nationality and irrespective of whether any reasons or whether very weighty reasons are required to justify the distinction, the difference is not justified.

Second, the test advocated by Mr. Drabble and set out in paragraph 122 above leads to the conclusion that there has been an unfair and unjustifiable discrimination based on personal characteristics of religion and nationality. It is also for those reasons that this is an infringement of article 14 for the reasons set out in Michalak. In essence, whatever test is applied, the article 14 claim has to succeed because of the absence of justification. Thus the claimants’ article 14 claims must succeed.

The section 19 regime infringes article 12 and article 14 rights. In her powerful submissions, Miss Carss-Frisk attached great importance to the degree of deference owed to the Secretary of State and to the legislature. In my view even that degree of deference does not justify the interference with the article 12 and 14 rights, which the section 19 regime causes. . In addition, I had been in any doubt about this conclusion (which I am not ), I do not consider that deference is actually owed to the Secretary of State when he has reached a decision as he apparently did in this case affecting many people without first considering whether non-Anglican religious ceremonies were used for sham marriages. Or were likely in the future to be used for such marriages. In other words, the basis of deference is that the person to whom deference is owed has used his special knowledge or position to make a decision while deference has no role where the decision-maker has simply not considered something, which was apparently the situation in the present case.

As I have explained earlier, I have only sought in this judgment to deal with the issues specified by the parties and no submissions have been addressed to me by Miss Carss-Frisk on the EU claim as it was agreed that the claimants could restore this claim after I had given the present judgment if they then thought that there would be any point in doing so. By the same token, there will have to be consideration of what orders should now be made and what further submissions are required in the light of my judgment.