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Article: Paving the Road to Hell

Date: (19 January 2011)    |    

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Only the cynical would doubt that the government had the best of intentions in raising the age of both parties to a marriage from 18 to 21 with the stated aim of tackling the acknowledged evil of forced marriage. Chris Mullin, a junior minister in the last Labour administration and a man with evident sincere concern for immigration issues, devoted a small but memorable section of his memoirs 'A view from the foothills' to his delight in the advancement of the measure as a rare example of the ability to do some small good whilst in power. There is real bathos then in the recent decision of the Court of Appeal to allow the joined appeals in the case of R oao Quila and Others v Secretary of State for the Home Department [2010] EWCA Civ 1482,1 on the basis that they amounted to an unlawful infringement of the Claimants' rights.

Where did it all go wrong?



Sedley LJ, with whom Pitchford LJ agreed 'for the reasons he has given', in a thorough survey of the law, serving to remind us all of how much we will miss him when he retires, found that the rule was not irrational in the traditional sense of having no bearing on its intended target and was not ultra vires. He did however find that the rule interfered 'sharply' with a fundamental right in a manner that made the question of its proportionality central in both common law and in respect of its impact on the Appellants' right to family life under article 8 of the ECHR. It was therefore clearly cogent that it was common ground that in these two instant cases there was no suggestion that the marriage was anything other than genuine, and that the sole reason for the refusal of leave was the age of the parties.2

From that point the game was up for the Secretary of State. Not only was the interference unjustified insofar as it affected the Appellants, but the Secretary of State's reasoning left a great deal to be desired, it was described at one point (para 62) as 'inadequate and muddled'. So many flaws were highlighted that a detailed treatment would cover a great deal of space, for present purposes it suffices to note that (amongst many other problems) (a) the Secretary of State's own argument was that the rule would not function if the decision maker was required to assess the genuineness of the marriage, but there was no answer to the point that appeals against refusals in the Tribunal would inevitably have to confront the issue of the genuineness of the marriage, and (b) there was no justification put forward whatsoever for the exemption of spouses of the armed forces from the measure.

The disappointment that many will feel is that the Court concluded that:



'In my judgment the correct course is to decide these two cases in relation to their own facts, leaving it to the Home Secretary, at least in the first instance, to decide how far their ripples spread. This means that we are moving from the possibility of striking down the rule ...' para 31

There is no doubt good reason for the Courts to be very cautious in striking down measures approved by Parliament. What this leaves unaddressed however is the position of the many applicants and appellants who have already fallen foul of the raised age limit: must they all litigate separately to secure their rights? This is a developing and specialist area, and Duncan Lewis are happy to advise those affected by these developments.

Footnotes



1Strictly speaking, one was heard as a judicial review in the Court of Appeal whilst the other was an appeal against refusal to grant judicial review.
2Interestingly, Gross LJ, whilst agreeing with the result, did not accept that proportionality, or even article 8 (for reasons to do with the article 8 caselaw on related issues) was the key to the outcome. He considered that in these circumstances it was irrational to insist upon the strict application of the rule in the first place.


 

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