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Home Office appeal in Quila dismissed
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UPDATE: SEE LATEST POST.
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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