R (on the application of Quila and another) v Secretary of State for the Home Department

These two appeals relate to one of the rules currently in force by which the appellant, the Secretary of State for the Home Department, determines an application for a visa to enter or remain in the United Kingdom made by the spouse of a person who is present and settled in the UK (“a marriage visa”).

The Secretary of State appeals against the order of the Court of Appeal dated 21 December 2010 (Sedley, Pitchford and Gross LJJ) [2010] EWCA Civ 1482, [2011] 3 All ER 81) by which it declared that her application of the rule so as to refuse marriage visas to the two effective respondents was unlawful as being – so the majority concluded – in breach of their rights under article 8 of the European Convention on Human Rights and Fundamental Freedoms 1950 (“the ECHR”). In effect pursuant to supplementary orders made by the Court of Appeal the Secretary of State has now granted marriage visas to each of the two respondents. But her appeals to this court, although academic for them, retain a general importance which has justified their continued prosecution.

The rule is rule 277 of the Immigration Rules 1994 (HC395). The version of the rule which, as substituted by HC1113, came into force on 27 November 2008 was as follows:

“Nothing in these Rules shall be construed as permitting a person to be granted entry clearance, leave to enter, leave to remain or variation of leave as a spouse or civil partner of another if either the applicant or the sponsor will be aged under 21 … on the date of arrival in the United Kingdom or (as the case may be) on the date on which the leave to remain or variation of leave would be granted.”

That rule therefore governed “a spouse or civil partner”. There were parallel rules which governed “a fiancé(e) or proposed civil partner” (rule 289AA) and “an unmarried or same-sex partner” (rule 295AA).

A “sponsor” is defined by rule 6 as “the person in relation to whom an applicant is seeking leave to enter or remain as their spouse (etc)”. Thus, for present purposes, the “sponsor” is the spouse who is present and settled in the UK, for example (as in each of the cases before the court) a British citizen present and ordinarily resident in the UK. The “applicant” is the other spouse.

Prior to 27 November 2008 rule 277 – like the parallel rules – was in the same terms save only that its reference to age was “under 18” rather than “under 21”. Such had been the rule since December 2004, when the minimum age for the applicant had been raised from 16 to 18 so as to become the same as the minimum age for the sponsor, which had been raised to the same extent in April 2003.

With effect from 6 April 2010 rule 277 – like the parallel rules – was amended in a small and largely irrelevant respect. After the words “under 21” were inserted, in parenthesis, the words “or aged under 18 if either party is a serving member of HM Forces”.

The appeals require focus upon the Secretary of State’s purpose in amending rule 277 so as to provide that, with effect from 27 November 2008, a marriage visa should not – in the absence of exceptional, compassionate circumstances which would attract the exercise of her discretion outside the ambit of the rules – be granted until both the sponsor and the applicant had attained the age of 21.

The Secretary of State’s purpose is clear. It was not to control immigration. It was to deter forced marriages. At the heart of the appeals is her analysis of the nexus between entry into a forced marriage and the increase in the minimum ages requisite for the grant of a marriage visa. No one could contend that the nexus is very obvious.

A forced marriage is a marriage into which one party enters not only without her or his free and full consent but also as a result of force including coercion by threats or by other psychological means: section 63A(4) and (6) of the Family Law Act 1996, inserted into it by section 1 of the Forced Marriage (Civil Protection) Act 2007 (“the Act of 2007”). The forcing of a person into marriage is a gross and abhorrent violation of her or his rights under, for example, article 16(2) of the Universal Declaration of Human Rights 1948, article 23(3) of the International Covenant on Civil and Political Rights 1966 and article 12 of the ECHR. A forced marriage is entirely different from an arranged marriage in which, in conformity with their cultural expectations, two persons consent to marry each other pursuant to an arrangement negotiated between their respective families. The prevalence of forced marriage within sections of our community in the UK has come increasingly to the attention of a shocked public during, say, the last 12 years as victims of it, or witnesses to it, have at last and less infrequently summoned the courage to report it. In 1999 the Home Office established a Forced Marriage Working Group, which published its findings in 2000. Parliament has responded actively to revelation of the problem by enactment of the Act of 2007, which provides the court with a flexible jurisdiction to make orders protective of a person who may be, or has been, forced into marriage. Under renewed discussion is whether there is any value in also making the act of forcing a person into marriage into a specific criminal offence. The other main instrument of the state’s response to the revelation of the problem has been the creation in 2005 by the Home Office and the Foreign and Commonwealth Office of the Forced Marriage Unit (“the FMU”).

In November 2008 the Secretary of State published guidance under section 63Q of the Family Law Act 1996, as inserted by the Act of 2007. It was for the benefit of those exercising public functions potentially relevant to instances of forced marriage. In the guidance the Secretary of State addressed the motives of those who forced a person to marry in the following terms:

“36.

Some of the key motives that have been identified are:

•

Controlling unwanted sexuality (including perceived promiscuity, or being lesbian, gay, bisexual or transgender) – particularly the behaviour and sexuality of women.

•

Controlling unwanted behaviour, for example, alcohol and drug use, wearing make-up or behaving in a ‘westernised manner’.

•

Preventing ‘unsuitable’ relationships, e.g. outside the ethnic, cultural, religious or caste group.

•

Protecting ‘family honour’ or ‘izzat’.

•

Responding to peer group or family pressure.

•

Attempting to strengthen family links.

•

Achieving financial gain.

•

Ensuring land, property and wealth remain within the family.

•

Protecting perceived cultural ideals.

•

Protecting perceived religious ideals which are misguided.

•

Ensuring care for a child or vulnerable adult with special needs when parents or existing carers are unable to fulfil that role.

•

Assisting claims for UK residence and citizenship.

•

Long-standing family commitments.”

Thus “Assisting claims for UK residence and citizenship” was one of 13 suggested motives.

Data included in the guidance or otherwise provided by the FMU suggest the following:

Mr Aguilar Quila, the first respondent, is a national of Chile who was born on 12 July 1990. His wife, Ms Amber Aguilar, is a British citizen who was born on 25 April 1991 and who until 2009 lived in England. They began a relationship in 2006 when, with his parents, the first respondent was living temporarily in London. Later, on 17 August 2008, he returned to the UK on a student visa which was expressed to expire on 3 August 2009. In September 2008 they became engaged and on 22 November 2008 they were married. The Secretary of State acknowledges that they married because they were in love. By then they were aware of the imminent change in the rule; but even under the old rule the first respondent was not then entitled to a marriage visa because, although he had attained the age of 18, his wife would not attain it until 25 April 2009.

On 23 November 2008 the first respondent sought a marriage visa on the basis of exceptional, compassionate circumstances. The Secretary of State responded to the effect that the first respondent’s wife had not attained the age of 18 and that there were no such exceptional, compassionate circumstances as would justify a discretionary grant. On 1 May 2009, acting by the Joint Council for the Welfare of Immigrants, the first respondent sought a fresh decision on the basis that his wife had by then attained the age of 18 and by reference to fresh material which was said to call for the exercise of the Secretary of State’s discretion. But she responded to the effect that, because of the serious nature of forced marriages, the minimum age of both parties had been raised to 21; that by then the first respondent’s case fell to be determined – and inevitably refused – by reference to that new minimum age; and that, as before, there was no basis for a discretionary grant. She reminded the first respondent that, by virtue of the fact that he had leave to remain in the UK until 3 August 2009 and of the terms of section 82(2)(d) of the Nationality, Immigration and Asylum Act 2002, he had no right of appeal against her decision.

Thus, on 31 July 2009, the first respondent, accompanied by his wife, duly returned to Chile. But by then he had issued the claim for judicial review, which was to be dismissed by Burnett J in the Queen’s Bench Division, Administrative Court, on 7 December 2009 but was to be the subject of the successful appeal to the Court of Appeal.

The exceptional, compassionate circumstances which the first respondent had pressed unavailingly on the Secretary of State related in particular to the position of his wife. He stated that it would be intolerable for them not to live together for the following three years but that the effect on her of removal to Chile for such a period would be highly detrimental. He explained that both her parents were teachers; that she wanted to become a teacher of modern languages; that it would take five years for her so to qualify – in the attainment of an undergraduate degree for four years and of a Post Graduate Certificate of Education for the fifth year; that she had been offered a place at Royal Holloway, University of London, to study French and Spanish for four years beginning in October 2009, provided that (as later she duly did) she were to attain the requisite grades at A level; and that life in Chile for three years would set back the plans for her career to a grossly unfair and - in that the marriage was not forced – to a wholly unnecessary extent.

In August 2010 the first respondent and his wife, who had been staying with his family in cramped conditions in Santiago, moved to Ireland, where she embarked on a course at University College, Dublin. The paradox that the first respondent and his wife were entitled to live in Ireland but not in the UK arose from the fact that, as an EEA citizen exercising treaty rights to live in an EU state, the first respondent’s wife had a right to live there with him. In February 2011 the Secretary of State granted the marriage visa to the first respondent with the result that, with his wife, he moved back to the UK.

Bibi (as she invites the court to describe her),the effectivesecondrespondent, isa citizen of Pakistan who was born on 7 July 1990 and has always lived there. Her husband, Mohammed (as he invites the court to describe him), is a British citizen who was born on 8 April 1990 and who, save for some weeks in 2008, has always lived in England. They were married in Pakistan on 30 October 2008. It was a marriage which, in accordance with their cultural traditions, their two sets of parents had arranged. They allege – and the Secretary of State does not dispute – that each of them freely consented to the marriage and that they had been engaged since October 2007, whereupon they had begun to speak occasionally on the telephone. They had first met in Pakistan about a week prior to the marriage. On 1 December 2008 the second respondent, with the help of her father-in-law, applied to the Entry Clearance Officer (“the ECO”) in Islamabad, for a marriage visa. But the ECO had already told the father-in-law that, unless she were to apply prior to 27 November 2008 (which was to prove impracticable for her), her application would be rejected on the basis that, although both she and her husband had attained the age of 18, neither had attained the age of 21. On 19 January 2009 the ECO duly refused the application on that ground.

Following the marriage the second respondent and her husband appear to have cohabited briefly in Pakistan – perhaps only for some weeks – whereupon he returned to England. In April 2009, together with her husband, she applied to the Administrative Court for permission to apply for judicial review of the ECO’s refusal. It was against His Honour Judge Pearl’s refusal of permission on 5 August 2009 that she brought her successful appeal to the Court of Appeal. In May 2011 the Secretary of State granted the marriage visa to her, with the result, I presume, that she has joined her husband in the UK.

On 22 September 2003 the Council of the European Union adopted Directive 2003/86/EC. Its purpose was to determine the conditions under which third country nationals, i.e. not citizens of the EU, who were residing lawfully in an EU state could, by sponsorship, secure entry to it for their spouses and other family members. It did not address, even implicitly, how an EU state should respond to such requests when made by one of its own citizens or by a citizen of another EU state. Article 4(5) provided:

“In order to ensure better integration and to prevent forced marriages Member States may require the sponsor and his/her spouse to be of a minimum age, and at maximum 21 years, before the spouse is able to join him/her.”

The UK, Ireland and Denmark were not bound by the directive. As it happens, Denmark had already in 2002 raised to 24 the minimum ages both for the applicant and for the sponsor, and indeed in effect for all sponsors permanently resident in Denmark: see now section 9(1)(i) of the Aliens (Consolidation) Act 2009. At the time when the ages were raised, it was argued not only that the change would promote better integration of foreign spouses into Danish society but also that it would contain forced marriage. But subsequent research in Denmark did not confirm that the reform had reduced forced marriage; and it highlighted negative – and socially alienating – effects on the reasonable aspirations of young spouses whose marriages were not forced.

In about 2004, in the wake of the directive, several other EU states, such as Germany and the Netherlands, raised their minimum ages to 21 and, again at least in the case of some such states, not merely in the case of the limited category of potential sponsors who had been the subject of the directive. I will assume that such states made the change in the hope of achieving each of the goals described in the article: but there is no evidence as to whether their hope has proved to be justified in either respect.

In the above circumstances it was entirely appropriate that the Secretary of State should examine whether the minimum ages for a marriage visa should be raised to 21 or 24 in the UK. In 2006 she commissioned Professor Hester and a team at Bristol University to prepare a report on the merits of any such change.

But Professor Hester’s report, dated 15 February 2007, was expressly negative. Her first recommendation was that “[t]he age of sponsorship/entry should not be raised either to 21 or 24”. She said that the predominant view across all aspects of the research was that any such increase would be detrimental and, in particular, “discriminatory on racial and ethnic grounds and with regard to arranged and love marriages”.

The Secretary of State did not publish Professor Hester’s report; and it was later published independently. It was the view of the Secretary of State and of two external peer-reviewers that, while the methodology used for the research had been sound, the report was marred by unsubstantiated statements, unclear terminology and sampling bias, and thus that its findings should be treated with considerable caution. In these proceedings there has been no debate about the validity of these criticisms.

In December 2007 the Secretary of State issued a consultation paper entitled “Marriage to Partners From Overseas”. The main questions were whether, in order to reduce the incidence of forced marriage, the minimum ages for a marriage visa should be increased to 21. A subsidiary question was whether a person should be required to declare her intention to be a sponsor prior to departure from the UK in order to contract a marriage abroad.

On 13 June 2008 the Home Affairs Select Committee of the House of Commons published a report entitled “Domestic Violence, Forced Marriage and ‘Honour’-Based Violence”. It was a magisterial report upon various types of domestic abuse in the UK and it extended far beyond the subject of forced marriage. But the report included a section on the question which the Secretary of State had put out for consultation. It noted that the use of visa application rules in order to tackle forced marriage was controversial. It concluded as follows:

“110.

The testimony we heard from forced marriage survivors suggests that the desire to procure a marriage visa for a spouse can be an important factor in forced marriage. When we asked for their views on this issue, survivors told us that raising the age of sponsorship for marriage visas from 18 to 21 could better equip victims to refuse an unwanted marriage. However, associated with such a change is a significant risk that young people would be kept abroad for sustained periods between a marriage and being able to return to the UK with their spouse.

111.

We have not seen sufficient evidence to determine whether or not raising the age of sponsorship would have a deterrent effect on forced marriage. Given the potential risks involved, we urge the Government to ensure that any changes it proposes to its policy on visa application procedures in respect of sponsorship are based on further research and conclusive evidence as to the effect of those changes. This evidence must demonstrate that any changes will not inadvertently discriminate against any particular ethnic groups.”

In July 2008, in the light, inter alia, of the responses to the consultation, the Secretary of State issued her proposals for reform in a report entitled “Marriage Visas: The Way Forward”. Although there were proposed provisions which would equip applicants for marriage visas with greater knowledge of English, its main proposal was to increase the minimum ages from 18 to 21. The report stated as follows:

“3.4

We believe that there will be a number of benefits involved in raising the age, these include:

•

It will provide an opportunity for individuals to develop maturity and life skills which may allow them to resist the pressure of being forced into a marriage.

•

It will provide an opportunity to complete education and training.

•

It will delay sponsorship and therefore time spent with (sometimes abusive) spouse if the sponsor returns to the UK.

•

It will allow the victim an opportunity to seek help/advice before sponsorship and extra time to make a decision about whether to sponsor.

CONSULTATION RESPONSES

3.5

Supporters of the increased sponsorship age felt the proposal:

•

provided an opportunity for individuals to develop maturity and life skills.

•

removed young people from parental pressure to marry.

•

gave them an opportunity to complete education and training.

Opponents raised a variety of reasons against the proposal, stating that it:

•

could be perceived as discrimination based on cultural differences.

•

was detrimental to the human rights of young people.

•

would not prevent forced marriage since this affects people of all ages.

•

would penalise those with genuine marriage intentions.”

Then the report quoted the urgent request recently made by the Home Affairs Select Committee that no increase in the minimum ages be made without conclusive evidence that it would deter forced marriage and not be discriminatory. The report’s response was as follows:

“3.8

We believe there is such conclusive evidence because reports of forced marriage peak sharply at ages 18 and above. By age 21, reports of forced marriage begin to decline sharply.”

There was then a reference, in tabular form, to the statistics provided by the FMU about the age of victims of forced marriage, to which I have referred in para 11(d) above. But the response at para 3.8 above to the Select Committee’s call for conclusive evidence was wholly inadequate: for the call had been for evidence not about the age of victims of forced marriage but about whether an increase in the minimum ages for a marriage visa would deter it.

The relevant section of the report concluded as follows:

“3.14

We have carefully considered the issues raised by the Home Affairs Select Committee and the respondents to the consultation. We have paid particular attention to whether an increase in age from 18-21 would be proportionate given concerns that raising the age would penalise a number of genuine couples and discriminates against specific religious communities where the average age of marriage is likely to be lower including such communities where forced marriage is uncommon.

3.15

The committee was also concerned that there is a significant risk that young people would be kept abroad for sustained periods between a marriage and being able to return to the UK with their spouse. However, this has not been the general pattern of movement observed by the Forced Marriage Unit who indicated that sponsors generally return to the UK until they reach the sponsorship age.”

There was no attempt in the document to explain why the Secretary of State had concluded that the increase would indeed be proportionate in the light of its effect on those who entered into marriages which were not forced and of whom at least one was aged between 18 and 21. There was no attempt even to address the size of that constituency.

In an annexe to the report there was an analysis of the responses to the consultation. It was to the effect that, of the 89 relevant respondents, 45 had supported the increase, 41 had opposed it and three had expressed mixed views. Of the 45 in support, most had suggested that an increasing level of maturity and education during the three years would help a potential sponsor to resist being forced to marry but four of them had nevertheless doubted whether the increase would achieve its stated aim. Of the 41 in opposition, many had suggested that it would be discriminatory towards ethnic communities in which marriage at a young age was the cultural norm and would impact unfairly on the parties to marriages in which at least one of them was aged between 18 and 21 in that most of such marriages were not forced. In general the analysis of responses in the annexe was fairly summarised in para 3.5 of the document, set out at para 27 above.

In R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27, [2004] 2 AC 368, Lord Bingham suggested, at para 17, that the engagement of article 8 depended upon an affirmative answer to two questions, namely whether there had been or would be an interference by a public authority with the exercise of a person’s right to respect for his private or family life and, if so, whether it had had, or would have, consequences of such gravity as potentially to engage the operation of the article. Having analysed the authority, namely Costello-Roberts v United Kingdom (1993) 19 EHRR 112, which, at para 18, Lord Bingham had cited by way of justification of the terms in which he had cast his second question, the Court of Appeal in AG (Eritrea) v Secretary of State for the Home Department [2007] EWCA Civ 801, [2008] 2 All ER 28, observed, at para 28, that the threshold requirement referable to the nature of the consequences was “not a specially high one”.

Mr McCullough QC, on behalf of the Secretary of State, concedes that family life arose upon the marriage of each of the respondents to their sponsors notwithstanding that, at the date of the refusals of the marriage visas, it had scarcely been established in the case of the second respondent and was relatively undeveloped in the case of the first respondent. Counsel correctly suggests, however, that the more exiguous is the family life, the more substantial are the requisite consequences.

These were two British citizens who had lived throughout their lives in the UK and who, aged 17 and 18 respectively, had just embarked upon a consensual marriage. The refusal to grant marriage visas either condemned both sets of spouses to live separately for approximately three years or condemned the British citizens in each case to suspend plans for their continued life, education and work in the UK and to live with their spouses for those years in Chile and Pakistan respectively. Unconstrained by authority, one could not describe the subjection of the two sets of spouses to that choice as being other than a colossal interference with the rights of the respondents to respect for their family life, however exiguous the latter might be.

But central to this appeal is Mr McCullough’s reliance in this regard on the decision of the ECtHR in Abdulaziz v United Kingdom (1985) 7 EHRR 471. Three women, all lawfully settled in the UK, had married third-country nationals but – at any rate at first – the Secretary of State had refused permission for their husbands to remain with them, or join them, in the UK. In the second and third cases, as a result of a relaxation of the Immigration Rules, adequate permissions had ultimately been granted and had rendered the applications largely academic. In the present proceedings the Court of Appeal distinguished the court’s decision in Abdulaziz on the ground that the three women were not British citizens but women of other nationalities with, therefore, a right of abode elsewhere. But in the first case the woman had been deprived of her Malawi citizenship and, at the date of the refusal, was stateless; she almost certainly had no right of abode in Malawi. In the second case the woman had become a British citizen albeit following the date of the refusal. And in the third case the woman, albeit not a British citizen until later, was a citizen of the United Kingdom and Colonies at the date of the refusal. In these circumstances it is accepted on behalf of the respondents that the ground of distinction favoured by the Court of Appeal is untenable.

The decision of the ECtHR in Abdulaziz was that the refusals of permission had not infringed the rights of the women and of their husbands to respect for their family life under article 8 but that, in that the ground for the refusals had been a rule which had afforded a different and unjustified treatment of male, as opposed to female, spouses of persons lawfully settled in the UK, the women had suffered discrimination on the ground of sex in violation of their rights under article 14, taken together with article 8, of the Convention.

The importance of the decision for present purposes is the route by which the court came to reject the complaint under article 8 alone. The majority held that article 8 was not engaged; two judges, however, concurred in the conclusion in relation to article 8 only on the basis that, although the article had been engaged, the interference with respect for the family life of the applicants had been justified under article 8(2). In para 66 to para 68 of their judgment the majority stressed that:

The majority also said, at para 68:

“The duty imposed by article 8 cannot be considered as extending to a general obligation on the part of a contracting state to respect the choice by married couples of the country of their matrimonial residence and to accept the non-national spouses for settlement in that country.”

The above proposition has recently been cited with approval both in the ECtHR (see Y v Russia (2008) 51 EHRR 21, at para 103) and in this court (see ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 WLR 148, at para 19, per Baroness Hale).

Four decisions of the ECtHR subsequent to Abdulaziz deserve attention.

First, Gül v Switzerland (1996) 22 EHRR 93. A Turkish father, who had been permitted on humanitarian grounds to reside with his wife in Switzerland, failed to establish that, by refusing to allow their seven-year-old son to join them in Switzerland, the state had interfered with respect for his family life. Although, therefore, the court applied the decision in Abdulaziz, it stressed, at para 41, that the father and his wife had no permanent right of abode in Switzerland. In a powerful dissenting opinion two judges explained why in their opinion the state had not only interfered with the applicant’s right under article 8 but, by reference to the terms of its paragraph two, had violated it. In effect they pointed out, at para 7 and para 8, that in Abdulaziz stress had been laid on the fact that the disputed obligation was positive (to allow the husbands to reside in the UK); that the disputed obligation in the present case was similar (to allow the son to reside in Switzerland); that, where the challenge was to the state’s removal of a person, the disputed obligation was negative (not to remove him); that it would be illogical if this elusive difference were to affect whether there had been interference with rights under article 8; and that indeed, since the decision in Abdulaziz in 1985, the difference in the court’s treatment of positive and negative obligations had dwindled away.

Second, Boultif v Switzerland (2001) 33 EHRR 1179. An Algerian citizen married a Swiss citizen and was permitted to reside in Switzerland. Following his conviction for a robbery the state refused to extend his residence permit and he was removed from Switzerland. The court found that his right under article 8 had been infringed. The court, at para 40, summarily addressed the initial question whether the state had interfered with his right as follows:

“In the present case, the applicant, an Algerian citizen, is married to a Swiss citizen. Thus, the refusal to renew the applicant’s residence permit in Switzerland interfered with the applicant’s right to respect for his family life …”

The question whether the couple could reasonably live together in Algeria was answered, negatively, at para 53, only in the course of the court’s enquiry into whether the interference was justified.

Third, Tuquabo-Tekle v The Netherlands [2006] 1 FLR 798. A mother, father and their three sons were of Eritrean ethnicity but lived in the Netherlands and had acquired Dutch citizenship. When leaving Eritrea in 1989, the mother had left behind a daughter, then aged eight. When she was aged 15, an application was made for her to be allowed to enter the Netherlands in order to live with the family; but it was refused. The court held that, by the refusal, the state had violated the rights under article 8 of all six of its members. The court observed, at para 41 and para 42, that the asserted obligation of the state was positive, that “the boundaries between the state’s positive and negative obligations under this provision do not lend themselves to precise definition” and that “the applicable principles are, nonetheless, similar”. The minority view in Gül had become that of the majority. The court did not tarry to consider interference: it moved straight to justification.

And fourth, Rodrigues da Silva, Hoogkamer v Netherlands (2006) 44 EHRR 729. A Brazilian citizen lived, albeit unlawfully, in the Netherlands. She gave birth to a daughter who lived with the father but with whom she had contact. The court held that the state’s refusal to grant a residence permit to the mother had violated her right and that of the daughter under article 8. The court acknowledged, at para 38, that, in that the state had never granted a residence permit to the mother, its breach was of a positive, rather than of a negative, obligation.

The difficulty for the respondents which arises out of the case of Abdulaziz lies less in the proposition at para 68 of the judgment, set out in para 36 above, and more in the actual decision of the majority. The proposition is only to the effect that article 8 imposes no general obligation on a state to facilitate the choice made by a married couple to reside in it. On analysis, the proposition is unexceptionable: it invites, instead, a fact-specific investigation, which logically falls within the realms of whether the state’s obstruction of that choice is justified under paragraph 2. But the actual decision enables Mr McCullough to ask: inasmuch as there was not even an interference with the rights under article 8 of the three women in Abdulaziz in refusing to allow their husbands to join them, or remain with them, how can the analogous decisions of the state in the present cases generate a different conclusion?

Having duly taken account of the decision in Abdulaziz pursuant to section 2 of the Human Rights Act 1998, we should in my view decline to follow it. It is an old decision. There was dissent from it even at the time. More recent decisions of the ECtHR, in particular Boultif and Tuquabo-Tekle, are inconsistent with it. There is no “clear and consistent jurisprudence” of the ECtHR which our courts ought to follow: see R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23, [2003] 2 AC 295 at para 26, per Lord Slynn. The court in Abdulaziz was in particular exercised by the fact that the asserted obligation was positive. Since then, however, the ECtHR has recognised that the often elusive distinction between positive and negative obligations should not, in this context, generate a different outcome. The area of engagement of article 8 - in this limited context - is, or should be, wider now. In that in Tuquabo-Tekle the state’s refusal to admit the 15-year-old daughter of the mother, in circumstances in which they had not seen each other for seven years, represented an interference with respect for their family life, the refusals of the Secretary of State in the present case to allow the foreign spouses to reside in the UK with the British citizens with whom they had so recently entered into a consensual marriage must a fortiori represent such an interference. The only sensible enquiry can be into whether the refusals were justified.

The burden is upon the Secretary of State to establish that the interference with the rights of the applicants under article 8, wrought by the amendment to rule 277 effective from 27 November 2008 (“the amendment”), was justified under paragraph 2 of the article: see Marcic v Thames Water Utilities Ltd [2003] UKHL 66, [2004] 2 AC 42, para 37. But in an evaluation which transcends matters of fact it is not in my view apt to describe the requisite standard of proof as being, for example, on the balance of probabilities.

The amendment had a legitimate aim: it was “for the protection of the rights and freedoms of others”, namely those who might otherwise be forced into marriage. It was “in accordance with the law.” But was it “necessary in a democratic society”? It is within this question that an assessment of the amendment’s proportionality must be undertaken. In Huang v Secretary of State for the Home Department [2007] 2 AC 167, Lord Bingham suggested, at para 19, that in such a context four questions generally arise, namely:

In the present case the requisite enquiry may touch on question (b) but the main focus is on questions (c) and (d).

But what is the nature of the court’s enquiry? In R (SB) v Governors of Denbigh High School [2007] 1 AC 100 Lord Bingham said, at para 30:

“it is clear that the court’s approach to an issue of proportionality under the Convention must go beyond that traditionally adopted to judicial review in a domestic setting… There is no shift to a merits review, but the intensity of review is greater than was previously appropriate, and greater even than the heightened scrutiny test… The domestic court must now make a value judgment, an evaluation, by reference to the circumstances prevailing at the relevant time... Proportionality must be judged objectively, by the court…”

Lord Brown’s call, at para 91 below, for the courts in this context to afford to government a very substantial area of discretionary judgement is at odds with my understanding of the nature of their duty. Indeed, in the case of Huang cited above, Lord Bingham proceeded to explain, at para 16, that it would be wrong to afford “deference” to the judgments of the Secretary of State on matters related to the above questions albeit that appropriate weight had to be given to them to the extent, in particular, that she was likely to have had access to special sources of knowledge and advice in connection with them. He added, at para 17, that, notwithstanding the limited right of Parliament to call upon the Secretary of State to reconsider proposed changes in the Immigration Rules provided by section 3(2) of the Immigration Act 1971, it would go too far to say that any changes ultimately made had the imprimatur of democratic approval such as would be relevant in particular to any answer to question (d) set out in para 45 above.

In the present appeals the questions identified above fall upon two sides. One side asks whether, and if so to what extent, the amendment is likely to have deterred, and to continue to deter, forced marriages. The other side asks how many parties to unforced marriages are likely to be condemned by the amendment to suffer the interference with their rights exemplified in the two cases before the court.

The Secretary of State’s contention that the amendment is likely to deter forced marriages remains based upon the four bullet points included in para 34 of her report entitled “Marriage Visas: The Way Forward”, set out in para 27 above. Her main suggestion is that the passage of up to three years should strengthen the ability of either the intended or the actual victim of a forced marriage to resist either entry into it or her later act of sponsorship which, were she to have remained living in the UK, would enable the spouses to cohabit here. The suggestion is tenable. But ten other questions arise and, since they are but questions, there is no need for me to identify in the materials and submissions presented to the court the source from which they come. In what follows I will, for convenience, take the victim of a forced marriage to be a girl present and settled in the UK whose parents force her to marry a man resident abroad without a pre-existing right of abode in the UK.

The ten questions are as follows:

The ten questions are not easily answered. Professor Hester and her team attempted to address most, if not all, of them but, for reasons good or bad, the Secretary of State did not accept her report. In June 2008 the Home Affairs Select Committee urged the Secretary of State not to introduce the amendment until, following further research, there was conclusive evidence about its effect. But she proceeded to introduce it. The questions remain unanswered. The Secretary of State has failed to demonstrate that, when she introduced it, she had robust evidence of any substantial deterrent effect of the amendment upon forced marriages.

I turn to unforced marriages. What was the likely scale of the inevitably detrimental effect of the amendment on unforced marriages. A subsidiary question, raised by the Home Affairs Select Committee in June 2008, was whether the detrimental effect was likely to be visited disproportionately upon members of communities with a tradition of marriage at a young age.

In this regard the evidence of the Secretary of State in these proceedings was provided by Ms Smith, Deputy Director of Immigration Policy. She said:

“17.

The question of proportionality in terms of the impact upon couples intending to enter a marriage that was not forced where one or both of the couple are aged under 21 was considered carefully when drafting the policy.

…

20.

…the numbers affected by the rule change constituted a very small proportion of those applying for marriage visas for the UK. In 2006, for example, 7% (3,420) of spouses granted leave to enter the UK were aged between 18 and 20 and 2.5% (520) of people granted leave to remain in the UK as a spouse were within this age group. In 2007, 2.7% (1,245) of spouses granted leave to enter and 2.6% (700) of spouses granted leave to remain in the UK as a spouse were aged 18 to 20…

21.

We concluded that as the policy would affect less than 3% of those granted both leave to enter and leave to remain in the UK as a spouse in 2007, and as the evidence demonstrated that the rates of forced marriage were highest amongst those aged 17-20 in 2005-2008, the policy would represent a proportionate response to the issue of forced marriage, and the importance of protecting the rights and freedoms of vulnerable persons who might be forced into marriage would outweigh the significance of any adverse impact on particular communities or age groups…”

But it establishes nothing to note first that 3,940 and 1,945 marriage visas were granted in 2006 and 2007 respectively to those aged between 18 and 20; second that at any rate the figure for 2007 was less than 3% of all marriage visas granted in that year (therefore presumably amounting to about 65,000); and that the rates of forced marriage were highest (ie about 30% - see para 11(d) above) among those aged between 17 or 18 and 20. To deny marriage visas to 3,940 or even only to 1,945 applicants in a year is, irrespective of percentages, to deny them in a vast number of cases. The relevant question relates to the likely size of forced marriages within these numbers.

The evidence does not begin to provide an answer to this question. By referring back to para 11(d) above, we can compare the number of cases in 2006 in which the FMU provided support to victims or potential victims of forced marriage aged between 18 and 20, namely 44, with the number of visas granted to that age-group, in that year, namely 3,940; for 2007, the comparison is of 69 with 1,945; and, albeit only partly visible in what I have set out above, the evidence suggests a comparison for 2005 of 44 with 3,065. But the above exercise is hardly worth the undertaking. For on the one hand the FMU’s figures relate to all forced marriages, irrespective of whether the spouse may reside in the UK only pursuant to a marriage visa. On the other hand – and no doubt much more importantly – the FMU’s figures understandably represent only a proportion of all intended forced marriages. So double them? Or treble them? Or multiply them by ten? The only conclusion soundly available on the evidence before the court – not challenged by the Secretary of State save in relation to the emotive word “exile” – is, in the words of Sedley LJ in the Court of Appeal, that “rule 277 is predictably keeping a very substantial majority of bona fide young couples either apart or in exile” and that it has a “drastic effect… on thousands of young adults who have entered into bona fide marriages”. As the Secretary of State acknowledges, the amendment is, in the words of Gross LJ, “a blunt instrument”.

On 10 May 2011 the Home Affairs Select Committee of the House of Commons published a report, entitled “Forced Marriage”, by which it reviewed developments in relation to the matters which it had addressed in its report published on 13 June 2008. In a short section it noted the amendment introduced by the Secretary of State and the decision of the Court of Appeal in these proceedings. It then summarised evidence which it had received both from Karma Nirvana, a respected organisation providing support to victims or potential victims of forced marriage, and from Southall Black Sisters, an intervener in these appeals and an equally respected organisation dedicated to the protection of black and Asian women from abuse of all types including forced marriage. The committee stated:

“16.

Karma Nirvana supported the change in the Immigration Rules on the grounds that:

We at Karma Nirvana have received feedback from victims that they have been helped by the rule. On the helpline we receive a number of calls from potential victims (and professionals on their behalf) under the age of 21 years asking about their ‘legal’ position. Most, if not all, seem quite relieved to find that they have extra ‘breathing space’ in which to make up their minds.

17.

However, Southall Black Sisters disagreed that the change has had a positive effect, stating that ‘it does not in reality protect victims from forced marriage, but simply increases pressure on them to remain within an abusive situation, and discriminates against migrant communities’. In evidence to our predecessor Committee in March 2010, Nazir Afzal of the Crown Prosecution Service, had mixed views:

I have spoken to several members of the third sector and police officers… and they tell me that it has had a very positive effect in terms of the people who would ordinarily have been forced into marriage at an earlier age… several hundred women have not been forced into marriage because they have been given the opportunity to wait until beyond 21… It has sent out a message to some families and to some communities that they need to be taking this a little bit more seriously than they have done. However, there has been an increase in relation to fraud involving birth certificates obtained abroad for individuals who are trying to pretend that they are 21 when they are not.

18.

We have received mixed evidence about the impact of the change in the Immigration Rules in 2008 to require sponsors of marriage visas and their incoming spouses to be over the age of 21. We recognise that the change may be seen as discriminatory and has the potential for young people to be held in abusive situations for longer; however, it has undoubtedly helped a number of young people to resist forced marriage.”

The Secretary of State suggests that the Select Committee’s recent report, not available to the Court of Appeal, remedies any deficiencies in her case in relation to the proportionality of the amendment and thus to the justification for her interference with the rights of the respondents. I disagree. Although its reference to discrimination against migrant communities is, by implication, a reference to unforced marriages within those communities, the Select Committee’s report is, as its title suggests, upon forced marriage; and the focus of the conflicting evidence which it surveyed related to whether the amendment had succeeded in deterring it. The committee did not also weigh its effect on unforced marriages in the manner mandated of the court by article 8(2).

There is a helpful parallel with the decision in R (Baiai) v Secretary of State for the Home Department [2008] UKHL 53, [2009] AC 287. In order to prevent marriages of convenience in the UK the Secretary of State introduced a scheme under which certain persons subject to immigration control required her written permission to marry and would not receive it unless they were present in the UK pursuant to a grant of leave for more than six months of which at least three months was unexpired. The House of Lords held that, notwithstanding that the right to marry under article 12 was not qualified in the way in which article 8(2) qualified the right in article 8(1), the state could take reasonable steps to prevent marriages of convenience; but that the scheme represented a disproportionate interference with the right to marry. It was, said Lord Bingham at para 31, “a blanket prohibition on exercise of the right to marry by all in the specified categories, irrespective of whether their proposed marriages are marriages of convenience”. The scheme, said Lady Hale at para 43, was “over–inclusive” and “[m]aking a serious attempt to distinguish between the ‘sham’ and the genuine was considered too difficult and too expensive”. On 14 December 2010, in O’Donoghue v United Kingdom (Application No 34848/07), the ECtHR approved the decision in Baiai and extended it to two later versions of the Secretary of State’s scheme. Furthermore, in Thlimmenos v Greece (2000) 31 EHRR 411 it held that the application of a rule that a felon could not become a chartered accountant infringed the rights under article 14, taken in conjunction with article 9, of a pacifist convicted of the felony of refusing to perform military service. The court observed, at para 47, that it was legitimate to exclude some felons from entitlement to become chartered accountants but that there was no objective and reasonable justification for having treated the applicant in that way.

I would, in conclusion, acknowledge that the amendment is rationally connected to the objective of deterring forced marriages. So the Secretary of State provides a satisfactory answer to question (b) set out in para 45 above. But the number of forced marriages which it deters is highly debatable. What seems clear is that the number of unforced marriages which it obstructs from their intended development for up to three years vastly exceeds the number of forced marriages which it deters. Neither in the material which she published prior to the introduction of the amendment in 2008 nor in her evidence in these proceedings has the Secretary of State addressed this imbalance – still less sought to identify the scale of it. Even had it been correct to say that the scale of the imbalance was a matter of judgement for the Secretary of State rather than for the courts, it is not a judgement which, on the evidence before the court, she has ever made. She clearly fails to establish, in the words of question (c), that the amendment is no more than is necessary to accomplish her objective and, in the words of question (d), that it strikes a fair balance between the rights of the parties to unforced marriages and the interests of the community in preventing forced marriages. On any view it is a sledge-hammer but she has not attempted to indentify the size of the nut. At all events she fails to establish that the interference with the rights of the respondents under article 8 is justified.

By refusing to grant marriage visas to the respondents the Secretary of State infringed their rights under article 8. Her appeals must be dismissed. In line with the helpful analysis of the Upper Tribunal (Immigration and Asylum Chamber) conducted in somewhat similar circumstances in FH (Post-flight spouses: Iran) v Entry Clearance Officer, Tehran [2010] UKUT 275 (IAC), I consider that, while decisions founded on human rights are essentially individual, it is hard to conceive that the Secretary of State could ever avoid infringement of article 8 when applying the amendment to an unforced marriage. So in relation to its future operation she faces an unenviable decision.