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Home Office appeal in Quila dismissed

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UPDATE: SEE LATEST POST.

By Tom Page
By Tom Page

In a judgment just handed down the Supreme Court has by a majority dismissed the Home Secretary’s appeal against the Court of Appeal’s ruling in the case of Quila v Secretary of State for the Home Department [2011] UKSC 45 (on appeal from [2010] EWCA Civ 1482). To put it another way, the Government’s attempt to increase the spouse visa age from 18 to 21 has been ruled unlawful.

The press release and summary can be found here. The full judgment is available here. See here for previous coverage on this blog.

The leading judgment is that of Lord Wilson, a highly respected judge with a family law background that will have brought some useful direct expertise and experience to bear on the case. Lady Hale, Lord Philips and Lord Clarke agree and Lord Brown dissents.

Lord Wilson holds that the effect of the increase int he spouse visa age clearly interferes with the family lives of those affected:

32. 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.

In what I believe to be a legal first, certainly for the Supreme Court, Lord Wilson then goes on explicitly to disavow and decline to follow the European Court of Human Rights case of Abdulaziz:

43. 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.

This is a very interesting departure from a highly influential Strasbourg decision that is still today regularly quoted by Immigration Judges. A can of worms is potentially opened — what other Strasbourg decisions might the UK decline to follow? — but it is probably a can to which only the Supreme Court holds the opener.

Lord Wilson delves into the statistical ‘evidence’ on which the claim that forced marriages would be prevented. He is critical of it but goes on to accept that the increase in the spouse visa age was rationally connected to the aim pursued, which was the prevention of forced marriage. However, he concludes that the increase in age requirements was far too blunt an instrument which interfered indiscriminately with far too many genuine relationships. He ends his judgment by concluding as follows:

58. [The Secretary of State] clearly fails to establish … that the amendment is no more than is necessary to accomplish her objective and … 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 identify 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.

59. 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) [post about this case here], 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.

The judgment is more clear cut than that of the Court of Appeal: a clear steer is given that any cases that meet the requirements of the Immigration Rules other for age and where it is established that the marriage is not a forced one should be allowed on human rights grounds.

I note in passing that several references are made to the report by Professor Hester and others that as far as I can ascertain was published here on this blog first, following a Freedom of Information request by the editor.

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Comments

74 responses

    1. Basically yes, but wait and see what response the Govt makes – it can be expected to be robust, they aren’t likely to be good losers on this after the whole catgate palaver.

    2. No doubt Theresa May will make some irresponsible declaration that judges support forced marriage, or even worse call for courts to be abolished altogether, as they are clearly at odds with the wishes of the editor of the Daily Mail, to whom this government looks for ideas on policy.

    3. So, I’m a little confused. This appeal was only for these individuals, and technically doesn’t change the law, or? We’re so desperate to send in our applications but it’s so confusing! Should we hold off on the application for now? We’re both under 21, so what should we do?

    5. They changed the rule in 2008 November, by now the Quila pair are eligible even if Govt introduces some other reasoning and keep the age increase.

      Let some one go to court again :(
      So sad for quila, but they helped a lot of people in not to go through the pain they did. God bless you guys who fought real hard!

  3. Common sense wins. I always maintained this rule was rubbish. I like how Lady Hale says: “Secretary of State could not simultaneously state that the measure was not for the purpose of controlling immigration and rely upon jurisprudence wholly premised on the State’s right to control immigration”. Hit the nail on the head it has nothing to do with forced marriages, just a brick wall to stop migration from select parts of the world.

  4. “On any view, the measure was a sledgehammer but the Secretary of State has not
    attempted to identify the size of the nut.” Lord Wilson

  5. Amazing! Finally some good news. Lady Hale has exposed the government’s hypocrisy:
    “The Secretary of State cannot at one and the same time say that she is not doing this for the purpose of controlling immigration and rely upon jurisprudence which is wholly premised on the state’s right to control immigration”.

  6. I don’t suppose we can expect the SSHD to now immediately change the rules back to 18? Or will ECOs still have to refuse on this? I’ll soon be finding out as my (19 year old) fiance will be putting in her application next week! If they refuse on this basis, surely is rather pointless, as any immigration judge will rule in my fiance’s favour?

    1. hey paul so wil u let us know on here if they accepted ur fiance’s visa application so we can also get our paper work ready plz??? thanks if u dnt mind x

  7. Amazing result, I’m sure 96 out of 100 visa applicants are going to be very, very happy! I can’t believe there was even a need for this to happen though, considering it was genuinely against human rights in the first place! I have a question though:

    When do you think it will be safe to start applying for our visas?

  8. Yet another Labour policy is ruled unlawful. Again entirely predictable as was COA scrapping.
    Back to 18? why not 16, as one of the cases involved a 17 year old.

    The coalition’s idea to raise higher than 21 should cease.
    It seems that the courts are protecting the right to marry and live together as a family, although they do their best to destroy marriages afterwards.

    It appears that the coalition’s other idea of testing connections to the UK for marriage based visa’s will carry a similar risk of being declared unlawful by the courts, particulartly where one of the spouses is British (ECJ Zambrano).

  9. it may take a couple of months for it to be put on the ukba website…i just hope the govt makes their response quick!

  10. Does this mean my wife (19 years old) can now apply for a spouse visa. They recently rejected her a visit visa too, to come and visit me in the UK.

  11. If 21 is illegal, why is 18 acceptable when 16 is (and was for immigration purposes until 2003) the marriage age in the UK. The court said ‘ No-one challenged its introduction for 16 and 17 year-olds, so we cannot speculate about them. ‘ If someone does challenge them, any guesses what will happen?

    1. I think 18 is acceptable because you will be in a better position to “sponsor” the spouse, more so than a 16 year old could. Also, as far as I am aware and I may be wrong, you need parental consent to be married at the age of 16 so maybe that would complicate matter regarding sponsoring a spouse, hence why it was changed to 18.

    2. it might be morally acceptable but it doesn’t seem to have any sort of logic to have it at 18

  12. So how long do you think this will take? Also what do we think about the things that were mentioned in the speach from about a month ago that Cameron spoke about changing other rules?

  13. This is a good result, placing the rights of applicants above the intended government policy which was not an approproate means of achieving the aim of fighting forced marriages.

    Hopefully the government accepts the ruling rather than seeking to undermine it. After the “cat farce” it might be hoped that ministers consider the effects of the rule on those who have been affected, rather than dicussing whether they may have pets.

  14. This is really, really wonderful. Thanks so much, FM, for providing such thorough coverage on this particular law, and to the Quilas for fighting the good fight; it clearly is quite important to many people, myself included. I hope you all get to be with the people you love real soon. xx

  15. I hope its changed to 18. I have a 1 month old baby and I really want my husband to come over so we can spend our lives together as the baby is missing the love from his dad. Hoping its changed.

  16. My wife and I are 19… I simply want to know can we apply visa now? Or does the waiting game continue…..

  17. I have got my application lurking at UKBA, just waiting for the gov response. I’m so happy for this. My wife is even pregnant, I need to work full time to cater for every single bit of my baby’s need to my satisfaction but as a student and my wife less than 21 just 20, I’m cornered in this abysmal human unfriendly law.

  18. I am very glad the Supreme Court made the right decision, to uphold the decison of the Court of Appeal on 21/12/10 that the non-compliant immigration rule should be disregarded. This does mean that any decision to refuse a marriage visa on the grounds that the sponsor is a British citizen who is between 18 and 20 years of age will be unlawful.

  21. i got first tier tribunal appeal on same issue (wife is 20 years old )in two weeks time pls advice what to do ?? my case was refused first time on same para 277 and on appeal hearing home office withdraw their decision n hold my case for 3 months and week ago refuse it again with same para 277 (277 age limit was the only reason it was refused both time ) 277 is history now what should i do still hire a barrister ?? i need advice

  22. Yes Very pleased that spouse visa law has been upgraded from 21 to 18. But too late for many . My son had to wait 2 years for spouse Visa application to go through in Nairobi Kenya though all the legal requirements were fulfilled. I think the forced marriages were just an excuse to cause harrassement to the majority of spouse applicants. But now I am worried that more excuses and even stricter controls and unneccessary harrassement will come out of the woods. This Tory government is looking for any excuse to win votes and this spouse marriage visa application is very vulnrable as controlling immigration on the other front is harder. A.I.

  23. is it possible to start applying now or do we still have to wait for ukba to publish something on their website?

  24. Hi everyone, I just made a phone call to the UKBA and asked about whether we could apply for my wife’s visa. Here’s what they said:

    “All the UK spousal visas are on hold right now while everything gets sorted out, however if you apply now, your application will NOT be refused solely because of age if you are 18 or up. Any
    applications under the age of 18 will still be refused.

    So if the applicant is 18 or over, you may apply and will not be refused for your age. However, your application will have a delay and I can’t say how long that delay will be.

    When all the details are final we will let everyone know and it will be posted on the UKBA website, so just keep checking there.”

    Seems like good news to me. It kind of sounded like it was going to be pretty soon as well. “just keep checking there” kind of felt like she meant it would be soon to me. Hopefully! Let’s all wish for it to be soon together!

    2. Don’t see why they should be delaying (and all spouse visa applicants at that!).The law of the land is as laid down by the Supreme Court.

  25. I have put my application through today. my thinking is since they cant refuse on age agrounds, they might try to get tougher on financial standing. fingers crossed will let everyone know, my wife will be 21 in 6 months time.

  26. guys plz let me know as soon as possbile so i can start working and collect my pay slips to invite my husband

  27. Yes finally good news. I’m going to be 21 in april anyway glad no one else has to go through what I did. 3years wait. Should I apply for the visa now?

    1. I used the general guidance number: 0870-606-7766.

      Actually, I called again today. Because of all the contradicting facts and mixed views, I wanted to clarify. When I phoned, the lady CONFIRMED that the age for a spouse settlement visa is now 18. As long as you’re not under 18, your visa will NOT be refused because of your age. However, applications are still on hold but keep checking the UKBA website and “very soon” it will be updated. Hope this helps!

      For the record, my wife applied the other day. we’re just going to do it and see what happens. We’ll let you guys know anything.

    3. i called today nd thats wot they told me exactly, that the age for spouse settlement visa is now 18 and they cannot refuse ur application if ur 18 or above !!

  29. Just a suggestion, but if you’re unsure of what to think, you should phone them on the number I gave before. Perhaps if a lot of people make contact regarding this they might give official word quicker.

    Please, phone. It’ll only take a few minutes and it might make a difference!

  30. I just phone ukba & they said they are awaiting news from the home office and the law remains 21 until this. ??

  31. hey everyone today i called UKBA and about 15 solictors they said that your application may still be refuesed because of the age i am not sure what to do really
    i will wait for few more weeks to see if the decision gets finalized by the home office

    1. I am getting mixed opinions, some are saying you cannot be refused & others are saying you can – when are the home office going to issue their statement?

  32. I have phoned UKBA this morning and was told that the age is now 18 but rang a solictor, who then rang the UKBA office, and they were told the age is still 21 years old!!!! so confused

    1. that rule has been declared unlawful. Technically speaking age has been reduced to 18 automatically.
      I do not know why solicitors are confusing every one.
      Law needs to be amended if court gives direction but if they declare that unlawful then previous rule applies automatically.

      Even if they refuse then you need a copy of High court and supreme court judgement for the tribunal and that is it. I have seen many people got their visas from tribunal because of the High court Judgement. Tribunal is lower court and has no authority to overrule High court or Supreme court Judgement.

      I hope that i have made it very clear.

  33. Just rang up and have been told current “cases might be held and take longer but any case where the age is over 18 will not be refused on age grounds. Official response is being awaited from the Home Office and hopefully wouldn’t be too long.”
    Agencies overseas and here are confused because they have had no official contact or word from the Home Office, so think the existing rule still stands (it appears to stand but has no legs!). Its just a matter of time. As soon as the home Office formally amend the rule which is imminent and inevitable…everybody will know and the confusion will end.
    Basically they cant reject your case on under 21 age grounds since the Supreme Court has declared it unlawful. Its just a matter of time people THE RULE NO LONGER APPLIES….trust me.

  35. Beware of legal ‘advice’ in the comments on this blog. The givers may or may not be well intentioned, but I have seen very little if anything that I consider correct or likely to be accurate so far. See latest post on comments on this blog and the effect of Quila.

    I’m afraid that the information on this blog is provided for free, but I’m not able to engage in individual cases and give free advice over the internet, so please do not ask.

    2. UKBA’s plan was to maintain the minimum age of 21 for marriage visa applicants and sponsors, if it won the appeal in Quila. As it lost the appeal it cannot now do so.

  37. so does that mean that the legal age to invite your spouse remain 21
    is it not going to be 18 plz let me know i didnt really understand the comments

  39. hello everyone does that mean that the law is changed back to 18 did u guys red the article and press release
    plz plz plz tell me that it is changed back to 18
    i have red the article and the press release but still i am not sure if it is changed

  40. 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

  41. Phoned the Home Office and they say they haven’t been told what is happening with the age limit on the spouse Visa, I was told to keep checking the website.
    I get the feeling the government have thrown their toys out the pram and are childishly turning there backs on the ruling in hope that it goes away.
    I am at my wits end I spoke to a lawyer and he says we should just go for it and apply, but if it the Visa application just sits in limbo being ignored then I can’t see my wife. My job is now already in Jeopardy because I’m going to spend xmas with my wife. She can’t tolerate being apart any longer so if we can’t get the marriage Visa my government has basically exiled me from my own country, as I will have to live abroad. They are meddling with my life because I chose to marry someone outside of the EU, according to the human rights act I as a British citizen have the right to marry who I choose but the government seems to say otherwise.
    While I’m ranting why do have to forfeit my right to help from the government when my wife gets granted a marriage visa? I have paid into the system for years, am I being punished for my choice of wife?

    1. No, it’s just an unofficial non government website doing a slightly belated post on the Quila case, sorry.

  43. please can any one of you tell me the exact info that my wife is british citizen and she is only 18 where as i am 19 can she apply for me da spouse visa

    1. No, no-one can do that, there is no answer at the moment, as I’ve tried to say in my two posts on Quila.