R (Quila) v Secretary of State for the Home Department [2011] UKSC 45

Two young couples were denied marriage visas under Rule 277, which raised the minimum age for sponsor and applicant to 21 to deter forced marriages. The Supreme Court held that the rule disproportionately interfered with Article 8 rights and dismissed the Home Secretary’s appeals.

Facts

The appeals concerned Rule 277 of the Immigration Rules 1994, amended with effect from 27 November 2008 to require both the sponsor (a person present and settled in the UK) and the foreign spouse applicant to be aged 21 or over before a marriage visa would be granted, raised from the previous minimum age of 18. The Secretary of State’s avowed purpose was not immigration control but to deter forced marriages.

Mr Aguilar Quila, a Chilean national, married Ms Amber Aguilar, a British citizen, in November 2008. Both were under 21. His application for a marriage visa was refused, forcing the couple either to live apart or to relocate abroad (they moved to Chile, then Ireland, where EU treaty rights enabled them to live together). Bibi, a Pakistani citizen, entered into an arranged but consensual marriage with Mohammed, a British citizen, in October 2008. Both were over 18 but under 21, and her marriage visa application was likewise refused. The Court of Appeal declared both refusals unlawful as breaches of Article 8 ECHR; the Secretary of State later granted visas but pursued the appeals for their general importance.

Issues

The principal issues were: (i) whether the refusal of marriage visas under amended Rule 277 engaged Article 8 ECHR; and (ii) if so, whether the interference was justified under Article 8(2) as a proportionate measure to deter forced marriages.

Arguments

Secretary of State

Mr McCullough QC submitted that, following Abdulaziz v United Kingdom (1985) 7 EHRR 471, Article 8 was not engaged because no general obligation existed on a state to respect the choice of matrimonial residence. The amendment had a legitimate aim of protecting potential victims of forced marriage, and its proportionality was supported by consultation, the practice of other EU states, EU Directive 2003/86/EC, and subsequent evidence (notably the May 2011 Home Affairs Select Committee report and evidence from Karma Nirvana).

Respondents and Interveners

The respondents argued that the rule constituted a colossal interference with their family life, and that the Secretary of State had failed to establish a robust evidential basis showing the measure was a proportionate response. They highlighted Professor Hester’s research (negative on raising the age), the Home Affairs Committee’s 2008 call for conclusive evidence, and the disproportionate impact on the very substantial majority of unforced marriages caught by the rule. The interveners also relied on R (Baiai) v Secretary of State [2008] UKHL 53 by analogy.

Judgment

The Supreme Court, by a majority of 4-1 (Lord Brown dissenting), dismissed the appeals.

Engagement of Article 8 (Lord Wilson)

Lord Wilson held that Abdulaziz should not be followed. It was an old decision, dissent had been expressed at the time, and later Strasbourg authority (particularly Boultif v Switzerland (2001) 33 EHRR 1179 and Tuquabo-Tekle v Netherlands [2006] 1 FLR 798) had eroded the distinction between positive and negative obligations. The refusals interfered with respect for family life and the proper inquiry was into justification under Article 8(2).

Justification and Proportionality

Applying the four-stage test from Huang v Secretary of State for the Home Department [2007] 2 AC 167, Lord Wilson accepted that the amendment had a legitimate aim and was rationally connected to it. However, the Secretary of State had failed to demonstrate that the measure was no more than necessary or that it struck a fair balance. He posed ten unanswered questions about the alleged deterrent effect on forced marriages and noted the absence of robust evidence. The Home Affairs Select Committee in 2008 had urged that no change be made without conclusive evidence; the Secretary of State proceeded regardless. By contrast, thousands of unforced marriages were obstructed: in 2007, 1,945 marriage visas were granted to those aged 18–20, while the FMU provided support in only 69 cases involving that age group. The amendment was, as the Court of Appeal put it, a “blunt instrument” or “sledge-hammer” without identification of “the size of the nut”.

Lady Hale’s reasoning

Lady Hale agreed that the interference with family life was “colossal”. She emphasised that the right to marry under Article 12 is fundamental and not qualified. Drawing on O’Donoghue v United Kingdom and Baiai, she observed that the rule was a general, automatic and indiscriminate restriction operating without regard to whether a marriage was forced. The evidence base was insufficient: divided expert views, the inconclusive consultation, and the risk that forced-marriage victims could be kept abroad longer or held in abusive situations. She concluded the interference was disproportionate and unjustified.

Lord Brown’s dissent

Lord Brown would have allowed the appeals. He gave weight to the May 2011 Home Affairs Committee report, Karma Nirvana’s supportive evidence, the equivalent rules in Germany, Austria, the Netherlands, Belgium and Denmark, and EU Directive 2003/86/EC. He considered that proportionality in this sensitive policy field was largely a matter of judgement for elected government, to which the courts should accord a very substantial area of discretionary judgement. He distinguished Baiai on the basis that it concerned a direct contravention of Article 12 and a less compelling aim (combating marriages of convenience).

Implications

The decision establishes that the Secretary of State, when applying Immigration Rules that interfere with the family life of British citizens and their foreign spouses, must justify any such interference under Article 8(2) by reference to proportionality, and cannot rely on broad assertions where the evidential base is weak. The court declined to follow the older decision in Abdulaziz in light of the development of Strasbourg jurisprudence narrowing the distinction between positive and negative obligations.

Lord Wilson observed that, while human-rights decisions are essentially individual, it would be “hard to conceive” that the Secretary of State could ever avoid infringing Article 8 when applying the amendment to an unforced marriage. The practical consequence is that Rule 277, in its amended form, is effectively unworkable in such cases.

The decision matters to couples affected by spousal immigration controls, to government departments designing measures to address social harms by means that also restrict Convention rights, and more broadly to the methodology of proportionality review. It reinforces that blanket measures targeting a serious social problem must be supported by evidence both of effectiveness and that less intrusive means are not available, and that the courts will not afford excessive deference to executive judgement where Convention rights are seriously engaged. Limits remain: the judgment is fact-sensitive, does not formally strike down the rule, and leaves open the position of the unchallenged earlier increase from 16 to 18, as well as the position regarding non-British sponsors and exceptional compassionate cases.

Verdict: The Supreme Court, by a majority of 4-1 (Lord Brown dissenting), dismissed the Secretary of State’s appeals, holding that the application of amended Rule 277 to refuse marriage visas to the respondents was an unjustified and disproportionate interference with their rights under Article 8 ECHR.

Source: R (Quila) v Secretary of State for the Home Department [2011] UKSC 45