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Effect of Quila
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UPDATE: SEE LATEST POST.
Following a hell of a lot of confused, confusing and anguished comments on my last post on Quila, I thought it might be helpful to set out my take on the effect of Quila.
The first thing to say is that I would be very wary of any information provided in comments on this blog. Some idiot even left a comment pretending to be from the UK Border Agency. The name ‘Andrew Higgins’ paired with the email address ‘ibrahimsaid@live.co.uk’ was a bit of a giveaway, I thought. There are some people out there trying to be helpful but who may be wrong. There are malicious people out there who just make things up. Then there are some well intentioned people who are just plain wrong. The Good, the Bad and the Ugly, perhaps.
Secondly, officials at the UK Border Agency, particularly the fairly junior officials manning their telephones, will not yet know what the response is going to be to Quila. They should not be giving legal advice over the phone and if they are then the advice may well be wrong.
No one, including the editor of this blog, can give definitive advice on the immediate effect of Quila.
That said, the spouse visa age has certainly not been automatically lowered to 18. The Supreme Court decided that the requirement that both parties to a spouse visa must be 21 or over was a breach of human rights in the two particular cases brought. The court went as far as to say that it would almost certainly be a breach of other people’s human rights in a similar situation, assuming that it could be shown that the marriage was not forced. This does not have the effect of amending the Immigration Rules, though.
The reason for this finding was that the increase in the spouse visa age was a disproportionate means of achieving a legitimate aim, the legitimate aim being to prevent forced marriages.
The UK Border Agency will now need to think about the judgement and will respond in due course. UKBA have a poor record of responding quickly to major judgements, and the Immigration Rules will remain at 21 until they do. They still have not properly responded to Metock (from 2008) nor Zambrano (March 2011), which were respectively years and months ago. The response to the Baiai case in the House of Lords was only just effected, several years later.
While the Border Agency think about what to do, Entry Clearance Officer and Immigration Officers may well continue to apply the old law. The UKBA have a poor record at respecting court judgments and the Immigration Rules remain as they were until they are altered by a formal Statement of Changes. However, if an appeal is lodged and pursued an Immigration Judge will allow an appeal based purely on age.
When the Government does decide how to respond, it may not change the Immigration Rules at all, or it may introduce new restrictions. The reason that the Government lost this case is because the measure was introduced purportedly to prevent forced marriage. The age change is such a rubbish way of achieving that end that many suspect Ministers and officials are not that stupid and actually the change was really about reducing immigration. The current Government has been very open about its desire to reduce immigration. If they announced that they were keeping the increased age in place purely to reduce immigration, that might be very difficult to challenge in court. It would be hard to argue that keeping the increased age is a disproportionate means of achieving the legitimate aim of reducing immigration.
This would be a huge volte face on the part of the Government, particularly after Damian Green’ attack on the judges for allowing more forced marriages to take place.
For what it is worth, I’d suggest getting applications in early. Such applications may be refused on the basis of age, but an appeal would, at the moment, be successful. That situation may change when the Government decides on its response.
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23 responses
Thanks for this post which I think is hugely useful. I was worried myself about the deluge of comments and ‘advice’ under the previous post.
If you feel like speculating a bit: assuming that the Govt indeed keeps the age limit at 21 and openly declares that this is in order to reduce immigration, could this then be challenged as singling out a particular group of people unfairly? With the forced marriage explanation removed, I cannot see what bearing spousal age may have on whether or not you can sponsor them (and presumably you want *younger* immigrants anyway). By analogy, could the Govt also introduce a ban on immigrant spouses called Hassan or Fatima?
FM, thanks for some very interesting clarification for us non-lawyer readers.
“The reason for this finding was that the increase in the spouse visa age was a disproportionate means of achieving a legitimate aim, the legitimate aim being to prevent forced marriages.”
This admittedly goes beyond immigration law specifically, but
Why does the case not form a binding judicial precedent (stare decisis) saying that the rule itself is null by being a disproprtionate means? Or does it in that an appeal would, at the moment, be successful, since the UK courts can’t specifically invalidate a law like the US Supreme Court can?
If the rule is kept in place for the purpose of reducing immigration, is this not invalid (at least on appeal) as the rule as it stands was implemented for the disproportionate reason? (The rule would need to be repealed and reintroduced, rather than changing the reason for its presence ex post facto to effectively circumvent the court ruling.)
I understood that only the legislative branch (ie parliament) could overturn what the highest court finds to be the law, but was evidently wrong. Would a Statement of Changes without a vote in parliament be sufficient to overturn a supreme court precedent?
“If they announced that they were keeping the increased age in place purely to reduce immigration, that might be very difficult to challenge in court.”
Is it possible to speculate on an outcome based on the argument that a genuine couple’s right to be together is so great that it is not proportional to restrict it for the purpose of any political policy of the gov’t of the day such as restricting immigration? (ie. “harm” caused by the immigration of spouses under 21, a “harm” which is subjective in the minds of politicians and not a fact, cannot justify such a severe interference in the human right of a genuine couple to be together.)
“Is it possible to speculate on an outcome based on the argument that a genuine couple’s right to be together is so great that it is not proportional to restrict it for the purpose of any political policy of the gov’t of the day such as restricting immigration? (ie. “harm” caused by the immigration of spouses under 21, a “harm” which is subjective in the minds of politicians and not a fact, cannot justify such a severe interference in the human right of a genuine couple to be together.)”
That’s a really good question, given that judges in the past have ruled that “controlling immigration” on its own is not a good enough reason to disproportionately disrupt family life. But I’d guess it would be judged case-by-case.
Thanks Mark, seems there may be case law to support the argument that immigration control on its own doesn’t trump the right to family life.
What an emotional roller coaster.
Your friend at EUMovement kindly gives a link to details of the changes to EU Regs for Metock under the “Immigration (EEA) (Ammendment) Regulations 2011”.
http://www.legislation.gov.uk/uksi/2011/1247/regulation/2/made
I think its the “(3) In regulation 8, at paragraph 2(a) for “an EEA State” substitute “a country other than the United Kingdom”.” bit.
Is this change now law, and does it fully implement Metock for UK citizens returning with their spouses under Singh?
Metock is implemented by the change to Reg 12, see http://freemovement.wordpress.com/2009/10/16/more-on-metock/
The change to Reg 8(2)(a) corrects a transposition contrary to directive 2004/38, see there §3(2)(a) “in the country from which they have come”. It was already known to the HO that the extended family member did not need to already live in an EEA state, see European Casework Instructions Chapter 5 point 5.1.2 “The person does not need to be living or have lived in an EEA state which the EEA national sponsor also lives or has lived.” and “The extended family member must have established his/her dependency or household relationship on the relevant EEA national in the country from which the EEA national moved to the UK. This is consistent with the wording of Article 3(2) of the Directive, which states that the person must be a dependant or member of the household of the EEA national in the country from which they have come;”
Singh already was implemented at Reg 9 and Metock is not relevant, Metock is relevant where the non-EEA family member/extended family member was not already legally in an EEA state, if returning under Singh, they were already in an EEA state.
Excellent explanation!
Thanks for the info clears up alot of the confusion. Well the age requirement changing does not really affect me know. Far to late for me ive gone through my long hard haul and just on the last few months.
I disagree with the notion that, “If they announced that they were keeping the increased age in place purely to reduce immigration, that might be very difficult to challenge in court.”
Were it to be so unchallengable, the UKBA could easily, to please the Tory extremists, the Daily Mail and the latter day Enoch Powell, Sir Sydney Green I mean, add other convenient excuses to reduce immigration such as, colour of the skin, ethnic origin, religious background, political ideology,gender preference and physical disabilities etc, all of which would be challengeable in any court of law as being provocatively and manifestly Racist.
You are not the only one to disagree with my assessment. This was sent in by Tim Buley of Landmark Chambers, who sounds a little horrified at my suggestion!
“They can’t introduce a 21 age limit on marriage entry to reduce immigration – any more than they could introduce a ban on marriage entry to reduce immigration. That would simply be contrary to Article 8 – immigration control pure and simple, even coupled with illegal entry, is not sufficient to outweigh family life between spouses in the majority of cases.” (reproduced with permission)
Which all goes to show that legitimate opinions differ. When it comes down to it no-one knows what the law is until a court decides.
The UKBA’s Family Migration consultation which started in July 2011 recently closed after 12 weeks said the following.
“Subject to the Supreme Court‘s judgment in Quila, we plan to maintain the minimum age of 21 for marriage visa applicants and sponsors.”
http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/consultations/family-migration/
The statement above is taken from their consultation on family migration going forward ie next year etc in which they intended to keep the age as 21 SUBJECT to the supreme courts judgment in Quila. This consultation finished before the judjement in Quila was given.
My opinion entirely, now that we have the benifit of the judjement. I assume they will change the 21 age. Again my opinion, this is how I interpret that statement. I may be wrong but I think they will lower the age to 18.
But then why is the government taking so long in changing the law back??
Due the recent supreme court judgement on 21years for spouse visa as against human right can I now apply for spouse visa?
I want to also draw your attention to the updated immigration directorate instruction to case study workers, it looks like less than 21 is no longer a key issue. Please kindly go through it at the link below and share your view.
Well if you look at the reasons for refusal, there is no reference to Age in the directorate. And note it’s an updated directorate issued October 20 11.
You had me excited there for a minute. Look at paragraph 1 of the IDI, though, which reads as follows:
It isn’t even paragraph 2…
hello everyone does that mean that the law is changed back to 18 did u guys red the article and press release
i have red the article and the press release but still i am not sure if it is changed
I don’t think it has legally changed yet it all depends on what UKBA do.
We just have to wait and see when it is offically changed from the UKBA website or other reliable sources.
I believe this has been changed now:
The changes will take effect on 28 November and will reduce the minimum age at which a person may be granted entry clearance or leave as the spouse, civil partner, fiancé(e), proposed civil partner, unmarried or same-sex partner of a sponsor, and the minimum age at which a person may sponsor such an application, from 21 to 18 years.
Source: http://jcwi.wordpress.com/2011/11/07/rule-changes-on-minimum-age-for-marriage-visas/
The rules are being changed as of 25 November, see latest post:
http://freemovement.wordpress.com/2011/11/07/spouse-visa-age-lowered/
You mean the 28th of November *
I heard on Radio 4 yesterday that there’s a proposal for the government to increase the funds/money requirement for Spouse/Partner/Family visa. This measurement, the perceive, could reduce visas granted through such scheme by two-thirds. Was I the only person who heard??