R (Bibi) v Secretary of State for the Home Department (No 3)
| Jurisdiction | England & Wales |
| Judge | The Hon Mr. Justice Burnett |
| Judgment Date | 07 December 2009 |
| Neutral Citation | [2009] EWHC 3189 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 07 December 2009 |
| Docket Number | Case No: CO/5353/2009 |
[2009] EWHC 3189 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Before: The Hon Mr. Justice Burnett
Case No: CO/5353/2009
Christopher Jacobs (instructed by the Joint Council for the Welfare of Immigrants) for the Claimant
Angus McCullough (instructed by Treasury Solicitor) for the Defendant
Hearing dates: 30 th October 2009 and 9 th November 2009
Introduction
This rolled-up application for permission to apply for Judicial Review came before me first on 30 th October 2009 but for various reasons was not ready for hearing. I adjourned the matter until 9 th November 2009 to enable the Secretary of State for the Home Department (“SSHD”) to file further evidence by Friday 6 th November 2009 and for the claimant to adduce further evidence and produce additional authorities.
On 4 th March 2009 the SSHD refused the claimant's application for leave to remain in the UK as the spouse of a British Citizen. That decision was reaffirmed on 15 th May 2009. These proceedings were lodged on 2 nd June 2009. Although at first blush the challenge appears to be to an individual set of decisions taken by the SSHD, what underlies it is the contention that the immigration policy relating to marriages of those under 21 is unlawful. The illegality is said to arise in a number of different linked ways. First, the claimant contends that the SSHD's policy is irrational and thus not permitted by the rule making power found in Section 3(2) of the Immigration Act 1971. Secondly, it is suggested that the policy is in conflict with Article 8 of the European Convention on Human Rights [“ECHR”] because it is disproportionate. Thirdly, it is said that the policy is discriminatory for the purposes of Article 14 ECHR when read with Article 8 because it impermissibly discriminates against those aged 18, 19 and 20. It is further suggested that the SSHD's decision not to exercise discretion in favour of the claimant was irrational and that on the facts of this case the decision amounts to a breach of Article 8 of the ECHR in respect of both the claimant and his wife.
With effect from 27 th November 2008, paragraph 277 of the Immigration Rules (HC 395) was amended to read as follows:—
“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 sponsor will be aged under 21 on the date of arrival in the UK or (as the case may be) on the date on which the leave to remain or variation of leave would be granted.”
The important change effected by that paragraph was that the qualification age of both parties was raised from 18 to 21. The claimant was caught by that change because he, a national of Chile, had married his British wife very shortly before the change in the rule when he was 18 and she was only 17. It has not been positively averred by the claimant that the previous rule, which required both parties to be 18, was unlawful. That rule had itself followed changes which raised the ages from 16 to 18. Neither does Mr. Jacobs, who appears on behalf of the claimant, accept that the rule was lawful. It is the increase in the age to 21 from 18 that he seeks to challenge and submits that it is unnecessary for him to address the question whether what came before was lawful.
The rule change made in November 2008 formed part of the policy of the SSHD to tackle forced marriages. Those are marriages where one or both of the parties are unwilling participants coerced into marriage. Such marriages must be distinguished from arranged marriages. The policy and rule change has nothing to do with arranged marriages.
The decision to refuse the claimant leave to remain was taken solely on the basis that his wife, who is the interested party in these proceedings, was too young (17) to meet the age requirement found in paragraph 277 at the date on which he made his application.
The Facts
The claimant is a national of Chile who was born on 12 th July 1990. His wife, the interested party, Amber Aguilar, is a British national born on 25 th April 1991. They met in early 2006 at a time when the claimant was living in London with his parents. The claimant and his family returned to Chile in June 2008 but he re-entered the UK on 17 th August 2008 with leave as a student. His leave was to expire on 3 rd August 2009. The visa was granted to enable him to complete an NVQ course in electrical installation at Lambeth College, which in due course he did. The evidence suggests that in September 2008 the claimant and Amber Jeffery decided to marry. Their thinking included an intention that the claimant would apply for leave to remain as the spouse of a British national when Amber reached her 18 th birthday in April 2009. They became aware of the proposed change in policy. On 22 nd November 2008 knowing that the age would be increased very shortly thereafter to 21, the claimant and Amber Jeffery married. They appreciated that the claimant would not qualify under the new Rule and that in November 2008 he did not qualify under the existing Rule because his wife was only 17.
The change in the terms of paragraph 277 had been heralded in a consultation process that started in December 2007. Much information about the proposed changes was available on the UK Border Agency [“UKBA”] website and it is not in doubt that the claimant and his wife became aware of those changes in the autumn of 2008. On 23 rd November 2008 the claimant and his wife wrote to the SSHD. They referred to the impending increase in the age limit which was due to come into effect on 27 th November. Their request was that leave to remain be granted to the claimant on an exceptional basis. The letter noted that if the application were refused, the claimant and his wife would have to move to Chile for 3 years and that, in particular, his wife “does not want this”. The letter noted that they were living together at Amber's parents' house. Amber was applying for a university place at London University. Financial provision was being made for them by her parents. The letter concluded as follows.:—
“The big problem that we have is that we were going to apply for a marriage visa once Amber was 18 on 25 th April 2009. We cannot now wait until that date to apply for the visa, as we shall both need to be 21 after 27th November. So, we are sending you this application now, even though we do not meet just one requirement – Amber is still only 17 years and 7 months.
We are both asking you to make an exception for us. If the marriage visa is refused, I will obviously have to keep my promise to return to Chile at the end of my studies. Amber and I love each other very much and cannot live apart – that is why we got married yesterday. That would mean that we would have to go and live in Chile for 3 years until Amber is 21. Amber does not want this – she would not be able to attend university in this country.
We feel that we have been very unlucky in getting caught up in this change to the law and cannot see a solution except to ask you to treat our case sympathically. Amber is a British Citizen, and I have lived here for more than 6 years and so feel completely British in my ways now.”
The SSHD determined the application in a decision dated 4 th March 2009. She declined the claimant's application on the ground that Amber did not meet the requirements of paragraph 277 as they stood at the time of the application. That is, that at the time of the application she was under 18. Paragraph 277 as it then stood required the sponsoring party to be 18 or more. The letter from the SSHD also confirmed that Article 8 had been considered but the conclusion was that there was no beach of Article 8.
On 1 st May 2009 the Joint Council for the Welfare of Immigrants [“JCWI”] wrote a letter before claim on behalf of the claimant and his wife giving notice of a proposed challenge to the decision dated 4 th March 2009. Although the decision of 4 th March 2009 was identified as the target of the proposed claim the basis of the claim was identified as the increase in age from 18 to 21. It was additionally suggested that the SSHD should have exercised discretion in the claimant's favour and emphasised that the rationale behind the new policy, namely to discourage forced marriage, had no application to the facts of the instant case. That last point has not been disputed by the SSHD. The evidence before the SSHD and before this court demonstrates beyond doubt that both the claimant and his wife are willing parties to the marriage. This is a love match. The JCWI invited the SSHD to reconsider her decision dated 4 th March 2009 now that Amber Aguilar was 18 years old. In essence what was being requested was that the Secretary of State for the Home Department should apply the old paragraph 277, which by May 2009 the claimant and his wife would have satisfied, and accept that the increase in age to 21 introduced the previous November was unlawful.
Despite the claimant's desire to focus on the increase in the age limit to 21 (see paragraph [4] above) it is significant that no suggestion was made that the old rule was irrational, disproportionate or discriminatory. Were it possible for the claimant to show that the change of the rule from its starting point (i.e. 16) to 18 was irrational or disproportionate, that would provide a...
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