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Spouse visa age challenge fails
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The JCWI challenge to the increase to the spouse and partner visa age from 18 to 21 has been dismissed: Quila v Secretary of State for the Home Department [2009] EWHC 3189 (Admin) (07 December 2009).
For previous coverage of this issue on Free Movement, click here.
There will certainly be an appeal and at least two other judicial review applications were stayed behind Quila, which may now be joined together for a broader consideration of facts and issues – including consideration of Article 12, the right to marry, which did not arise in Quila. For anyone caught by this policy, the timescale for an appeal will be at least several months. The various teams have been good enough to keep me updated so far and I’ll post more information if I hear any.
Interestingly, at paragraph 22 Mr Justice Burnett notes that ‘[t]he attack on the rationality of the new policy, and thus also its proportionality, has been founded substantially upon the conclusions of a research project headed by Professor Marianne Hester of Bristol University.’ That research report was first published in full here on Free Movement. He goes on to find as follows:
In my judgment, the SSHD cannot properly be criticised for treating the conclusions of the research with caution. On its face, as it seems to me, the report identifies many of the problems it encountered. If, as the authors recognise, a large number of those providing information were suspicious of the motives underlying the suggested change of policy and there were difficulties in conveying a clear definition of ‘forced marriage’ to those being consulted, the results of research are likely to be of restricted value. The various reasons given by the SSHD for treating the research with caution are, in my view, entirely coherent.
This rather ignores the fact that the Forced Marriage Unit, UKBA itself, police forces and other key stakeholders thought that there were substantial risks to potential victims of forced marriage if the visa age were increased.
The research report may have ended up being something of a distraction from the real issues, in the end. Forcing a young couple to live abroad increases the individual risk of one of the parties being trapped in a forced, abusive marriage. At least if you are physically in the UK there is a chance of access to help. Fat chance abroad, frankly. The research report very strongly arguably supports that argument, but the problems with conducting research in this difficult area should not detract from the force of the basic premise.
The reasoning in relation to Article 8 is wide open to further challenge and the judge does not seem to have engaged with many of the arguments advanced by the claimants’ team. The finding that there was no interference is very susceptible to challenge and the argument runs that if Article 8 is engaged, then justification is needed for interference and there is no rational justification in the individual case. The argument should not get as far as whether the interference is proportionate or reasonable.
This certainly isn’t the end of the litigation on this issue.
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33 responses
The case report mentions the possible use of discretion from the SSHD for possibly allowing leave outside of the rules where a genuine case is evident and on “clear compassionate” grounds. What are the conditions of this and is this something that can be applied for? (not in this case now, but possibly for others)
And pigs might fly. There is almost zero chance of the Home Office choosing to exercise discretion in any such cases, I’m afraid.
Yes I guess thats true. So back to the start again it would seem. A truely unfair and harsh law. What is the likely chance of it passing through the next stage of appeal? Not likely I imagine.
The finding that there is no interference with family life seems to fly in the face of the UKHL decisions in relation to article 8.
Surely the court has to consider the test of reasonableness of requiring a UK spouse to live in their partners country.
I expect this will end up with an article 8 decision form the Supreme Court and given what they have previously said when the were the Law Lords it is likely to go against the UKBA
As to the discretion issue I agree it is unlikely to result in a grant outside the rules, this lady is another example of someone who can’t get spouse status or granted discretiuonary leave despite being at risk in malaysia http://www.pinknews.co.uk/2009/12/07/trans-woman-facing-deportation-to-malaysia/
Im really disappointed by this discission but as the couple are living together already i expected such a result. I was hoping a stronger case would have been represented. my case is much the same married on the 6th nov as the law changed 27th nov i am 18 and a british citizen my husband is algerian. i would be very happy to go live with my husband and his family if i wasnt the sole carer for my mum who has MS so its impossible for me live with my husband and leave my disabled mum or stay with my mum and visit my husband when i can. So really this discissions come as quite a blow!!
Your circumstances might prove to be exceptional – I suggest finding a good immigration lawyer.
i am at the moment requesting a family visit visa with help from the IAS but as for the spouse visa theres no way i could afford to fight it but if i win the lottery who knows as im sure if i tried with my specific case i would win!
So we just got our determination for our visit visa appeal and it was dismissed they really dont understand the misery they are causing do they? They question the subsistance of my marriage well if they would let my husband come live me in very sure our marriage would have no problems but the fact the UKBA are keeping us apart with their stupid rules is a big problem!!
I found this case detailed on dailymail.co.uk, but struggled to find it on telegraph.co.uk and guardian.co.uk – maybe Monday’s story has dropped off their raday.
Unlike previous coverage, the online article contained no mention of the EC Freemovement Directive. There weren’t many comments on the EC Directive usage from the public either despite 134 comments. Instead the article talks about them having to go to a country in South America until they are 21 if they want to be together.
There was a Danish commentator who said their laws were even stricter with an age limit of 24. This explains the large number of young Danish newly-weds with their overseas spouses emmigrating to the UK and other EU countries. So young British newly-weds lets flood Denmark.
Is the reason that the Home-Office are getting tough on Spousal visas anything to do with the “2 for the price of 1” effect? Refuse 1 applicant, and effectively remove 2 people from the UK.
Just to clarify, at this point of time it doesn’t seem that the above judicial review will have any such affect on completely genuine cases? Cases in which both husband and wife are HAPPILY married, however cannot live together in the UK as one or both of them are aged under 21? In my case, I am literally going through mental torture as I have to live away from my wife and 7 months year old daughter! My wife is 20, I mean how possibly could I have been forced to marry her? I mean I have a child with her for Christ sake! UKBA really needs to get its act together, this is a free country right?
This is not a free country, if you are an immigrant or want one to live with you. The challenge has failed so far, so the law remains as it is, and genuine couples either have to live apart or live in another country – where if they were in a forced marriage they would be completely stranded and alone, of course. The policy is not just stupid and offensive, it is dangerous.
i think this law it totaly ridiculous!! I am an american citizen and my husband is british. I am 20 and will have to wait till next year to actually be with my husband. I cant beleive it honestly. How can they grant us to get married then we cant be together? i dont understand. they need to take this law away cause it only cause more heartbreak, pain and debt in many genuine relantionship that want to be together because they love each other..its like we are paying for a crime… ****can u please sign my petition to send to gordon brown*** many thanks!!!
http://petitions.number10.gov.uk/spousevisaage/
Hi Freemovement, is there anything happening with this situation or case? Not seen a post from you on this for some time? Have we given up all hope???
No developments, I’m afraid. I’ll do a new post if anything happens that I hear about.
I can’t believe this law has actually passed. I got married 7 months ago and i love my husband more than anything. I applied for a visit for him but he was refused. This is soooooo unfair. However, i have just recently heard that this law might be overturned. I was told by a friend who knows someone that works in immigration. x
We had a visit refused too. Have seen in a few places about this being overturned but not seen it anywhere concrete. Only people saying they have heard and looking at stats its unlikely?
I haven’t heard anything about it being overturned. There is an appeal being pursued to the Court of Appeal but any decision is months away, I’d have thought. And I doubt the Government has the sense to back down on this one, as absurd as the policy and its effects are.
Alisha
i would like to know if u have heard anything else from this person who works in immigration.
Do u know will the age will be reduced back to 18 and if the rule has been passed by the governement or anything else
Thank u very much
There is nothing to suggest the law is going to be changed back, as far as I am aware – the new Government wants to restrict immigration, so I would be surprised if they did change this. There is an ongoing court challenge, though, and if I hear anything I’ll post about it on the blog.
I’m sorry I don;t have any better news.
Hi FreeMovement, what is the likely chance of the court challenge being a success? Is it a challenge to the law or specific case? The Times article said October maybe for a decision on the case. Thanks.
Sorry, I really don’t know, but I will keep you posted.
Hi
me and my wife we are face realy diffucul sitution, we were married on apr 2008 when she was 17 so we were waitin for jan when she become 18 but law change in nov 2008 so we was affected by law, and i know its rule and we couldnt do anythink so apply for family visit visa i think i have rigth to invite my wife to visit me when she apply for family visit visa last year ,she was refusd a visaq to visit me by the time we found out she were pragnant and of all the stress and worry she lost our first baby ,its very diffucul for us be apart ,i went 2 weeks ago to the embassy and ask them what can we do as my wife pragnant again and i dont want have same problem like last year dont want get her into the stress and worrys again , in embassy told they had email end of last year that married visa law may be change and i ask do u know how long i have to wait for that , but they dont know when its gona come out , i just want to ask is any1 here knows anythink about the new law about marriage visa ? plz post us anythink about that
I’m so, so sorry to hear about your wife. I’m afraid there is no easy answer to your situation and I certainly can’t help you over the internet. You need to get a good lawyer. There is advice on the site about how to find decent solicitors – you need a solicitor for this because a judicial review application may be necessary and OISC advisers cannot assist with that.
Sorry to hear about that too. Just goes to show the real hurt and difficulties people are going through becuase of such a blanket law with no flexibility. Who in the embassy said it will change? I guess they refer to the appeal currently on-going.
Hi guys have see the new immigration rules on ukba site about marrige visa age back to 18 from 6th april 2010 can u guys looked and let me know is that true
Thanks for the heads up. Bad news, though, I think. I can’t access the whole statement of changes but the press release says the reduction in age back to 18 is for members of the armed forces only. Let me know and send a link if you find anything different.
i just looked again that what they saying
Our new policy lowers the marriage visa age from 21 to 18 for the following groups:
1) serving member of the HM Foreces who qualifay as sponsors under the immigration rules ( British or Foreign nationals) and;
2)their foreign national spouses,civil partners,same sex partners,unmarried partners,proposed civil partners and fiance(e)s.
The sponsors and those being sponsored who fall into the above groups will both need to be 18 or over to sponsor and apply for a marriage visa.
Hi guys again, any1 knows what going to happen for all of us whos not in army , if any1 has anythink about marriage visa age that let us know plz
Hi again i just want to know is the new goverment will change the marriage visa age back to 18 if you know anythink plz let us know coz my wife is prangant i cant leave her alone and go back to uk