R (Bibi) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sedley,Lord Justice Pitchford,Lord Justice Gross |
| Judgment Date | 21 December 2010 |
| Neutral Citation | [2010] EWCA Civ 1482 |
| Docket Number | Case Nos: 1.C4/2010/0150 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 December 2010 |
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THEADMINISTRATIVE COURT
1. Mr Justice Burnett
2. Hhj Pearl(Sitting as a Deputy High Court Judge)
Before: Lord Justice Sedley
Lord Justice Pitchford
and
Lord Justice Gross
Case Nos: 1.C4/2010/0150
2.C4/2009/1750
Mr Richard Drabble QC and Mr Christopher Jacobs (instructed by JCWI) for the FirstAppellant
Mr Angus McCullough QC and Mr Neil Sheldon (instructed byTreasury Solicitor) for the Respondent
Mr Al Mustakim (instructed by Davies Blunden & Evans) for the Second Appellant
Mr Angus McCullough QC and Mr Neil Sheldon (instructed by Treasury Solicitor) for the Respondent
Ms Karon Monaghan QC, Mr Sharam Taghavi and Mr Eric Fripp (instructed by Mishcon de Reya) by written submissions only for the 1st Intervener
Mr Henry Setright QC and Mr Michael Gration (instructed by Dawson Cornwell) for the 2 nd Interveners
Hearing dates: 21 and 22 October 2010
Lord Justice Sedley:
Summary
These two appeals raise the question whether the ban contained in paragraph 277 of the immigration rules on the entry for settlement of foreign spouses between the ages of 18 and 21 is a lawful way of dealing with the problem of forced marriages.
Forced marriage is not merely a cultural or social problem. A woman forced into marriage is in the law of this country a victim of false imprisonment and rape, and those arranging and procuring it are likely to be guilty of kidnapping and conspiracy. The Home Office is justified in doing everything it properly can to prevent or inhibit it. But is immigration control an appropriate means of doing so, and if it is, is the method adopted in the rules lawful?
It might seem at first sight that a rule restricting the age at which spouses can be united here has no appreciable bearing on the problem. But research and other data have satisfied the Home Secretary, first, that the targeted age-group is particularly vulnerable to this form of abuse, and secondly that there is no practical way of differentiating within it between forced and voluntary marriages. The Home Secretary has concluded that the unavoidable cost in terms of innocent casualties is justified by the expectation that the rule will frustrate a significant number of forced marriages.
For reasons to which I now turn, I have reached the conclusion that the arbitrary and disruptive impact of the rule on the lives of a large number of innocent young people makes it impossible to justify, at least where one spouse is a United Kingdom citizen, notwithstanding its proper objective. It follows, for reasons I shall explain, that the rule cannot lawfully be applied to the present appellants or, by parity of reasoning, to others like them. But it is not the role of this court to rewrite it: that is for the Home Secretary to do in the light of the court's reasoning, unless she decides to abandon it altogether. We shall accordingly welcome the parties’ submissions on consequential relief when we come to hand down this judgment.
The rule
Subject to a variety of conditions which are not presently material, a foreign national may in principle be granted entry clearance or leave to enter or remain as the spouse or civil partner of a person lawfully present or settled in the United Kingdom. For procedural purposes the UK-based spouse is known as the sponsor. Among sponsors are United Kingdom citizens with an indefeasible right of abode and a constitutional right to marry; but a sponsor may also be present in the United Kingdom only by virtue of leave to enter or remain. The material rule does not differentiate between these classes.
Until November 2008, rule 277 of the Immigration Rules (HC 1113) required the sponsor and the incoming spouse both to be aged over 18. (Until 2003 the sponsor could be as young as 16; in 2003 this was raised to 18, as was the age of the incoming spouse in 2004.) While this too is capable of having had an impact on bona fide marriages, no point is taken or arises on it in the present appeals, and I treat it as a lawful restriction, whatever its purpose.
With effect from 27 November 2008, however, rule 277 was amended to read:
Nothing in these Rules shall be construed as permitting a person to be granted entry clearance, leave to enter, leave to remain or variation of leave as a spouse or civil partner of another if either the applicant or the sponsor will be aged under 21 on the date of arrival in the United Kingdom or (as the case may be) on the date on which the leave to remain or variation of leave would be granted.
With effect from 6 April 2010 the rule was amended by interposing after the words “aged under 21”:
“(or aged under 18 if either party is a serving member of HM Forces)”.
The rule, being at base a policy, is capable of waiver. The Home Secretary's policy is to grant waivers only (in the words of the letter sent in the Aguilar case) in “clear exceptional compassionate circumstances which have not previously been considered and which merit the exercise of discretion outside the Immigration Rules”. It was conceded on the Home Secretary's behalf by counsel at first instance in the Aguilar case that the Home Office was bound to exercise the discretion to depart from the rules in any case where not to do so would violate article 8 of the ECHR. In practice, we are told by Angus McCullough QC for the present Home Secretary, this may be done where, for example, the wife is pregnant and unable to travel.
The rationale of the rule
I can do no better than to set out the explanation of the rule accepted by Burnett J in the Aguilar case and spelt out in his skeleton argument by Mr McCullough for the Home Secretary:
(i) The problem of forced marriage is a very serious one. It often involves rape, child abuse and domestic violence. The need to take effective and robust measures to address the problem is self evident.
(ii) The scale of the problem cannot precisely be identified as a large proportion of forced marriages go unreported. One report indicates that there may have been between 5,000 and 8,000 reported cases in the UK in 2008. On any view, the problem is a large one.
(iii) The older the individual, the better equipped he or she is likely to be to resist pressure to enter a forced marriage. Opportunities to mature and/or to complete education and/or to seek help and advice will all be of potential benefit in this regard.
(iv) A significant proportion of those forced marriages identified by the FMU involve victims aged between 18 and 20. The FMU's figures for 2005–2008 show that 28% of all cases involved those aged 18–20. There is, therefore, cogent evidence to indicate that an increase in the age limit will reduce the prevalence of forced marriage.
(v) The evidence relied upon by those who oppose the policy as being ineffective is neither conclusive nor particularly reliable. The SSHD's reservations regarding the Hester report are well justified and the sharp division amongst consultation responses demonstrates that those who seek to engage in this debate generally do so from a position of entrenched interest.
(vi) There is plainly room for legitimate difference of opinion as to whether the increased age limit, and the inconvenience this will cause to young people under the age of 21 who wish to live together in the UK, is proportionate to the problem of forced marriage which it seeks to address. At the heart of the assessment will be the individual's view as to the importance of facilitating the cohabitation of young married couples as against his view as to the perniciousness of forced marriage.
(vii) The SSHD was entitled to balance these considerations in the way that she did. Of particular relevance in this regard are:
(a) The seriousness of the problem of forced marriage;
(b) The fact that the effect of the policy does not extend to preventing genuine marriage but only to the temporary prevention of married life in the UK as opposed to elsewhere;
(c) The availability of leave outside the rules in compelling compassionate circumstances.
(viii) A relevant indication of both the effectiveness and proportionality of the SSHD's policy is provided by the fact that other countries who have sought to address this problem have reached similar conclusions. The Netherlands increased the age limit to 21 in 2004 and, contrary to the assertions advanced by the Appellants, this policy remains in force and has not been overturned by the ECJ. The coalition agreement of the new Dutch Government indicates their intention to increase the age limit to 24. Denmark increased its limit to 24 in 2002.
Both the premises and the logic of this rationale have been criticised by counsel for the appellants and by the interveners. It is pointed out that the Home Office had bespoken independent academic research which it rejected on grounds related to its intrinsic quality; but it has had no alternative research to rely on. Richard Drabble QC for Mr Aguilar submits, however, that the Home Office's own statistics, which were in evidence, indicate that while about a third of all forced marriages involve...
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