R (Baiai) v Secretary of State for the Home Department (Nos 1 and 2)

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLORD BINGHAM OF CORNHILL,LORD RODGER OF EARLSFERRY,LORD NEUBERGER OF ABBOTSBURY,LORD BROWN OF EATON-UNDER-HEYWOOD,BARONESS HALE OF RICHMOND
Judgment Date30 Jul 2008
Neutral Citation[2008] UKHL 53

[2008] UKHL 53

HOUSE OF LORDS

Appellate Committee

Lord Bingham of Cornhill

Lord Rodger of Earlsferry

Baroness Hale of Richmond

Lord Brown of Eaton-under-Heywood

Lord Neuberger of Abbotsbury

R (on the application of Baiai and others)
(Respondents)
and
Secretary of State for the Home Department
(Appellant)

and one other action (formerly R (on the application of Trzcinska and others)

(Respondents)
and
Secretary of State for the Home Department
(Appellant)

and one other action

Appellants:

Monica Carss-Frisk QC

Angus McCullough

Robert Wastell

(Instructed by Treasury Solicitors)

Respondents (Baiai & Trzcinska):

Rambert De Mello

Satvinder Singh Juss

Adrian Berry

(Instructed by Kamberley as London agents for David Tang & Co)

Respondents (Bigoku Agolli & Tilki):

Manjit Gill QC

James Collins

(Instructed by Sheikh & Co)

Interveners: (Joint Council for the Welfare of Immigrants and the AIRE Centre)

Richard Drabble QC

Eric Fripp

Charles Banner

(Instructed by Dawson Cornwell)

LORD BINGHAM OF CORNHILL

My Lords,

1

This appeal concerns the right to marry protected by article 12 of the European Convention on Human Rights, one of the articles to which domestic effect is given by the Human Rights Act 1998. It provides that "Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right". More specifically, the appeal concerns the control of that right by the Secretary of State under and pursuant to section 19 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004. The agreed issue is whether the scheme established by and under section 19 involves a disproportionate interference with (and therefore a breach of) the article 12 right to marry of any or all of the respondents. The Court of Appeal, affirming the first instance judge save on one point, held that it does. The Secretary of State challenges that conclusion.

2

Mr Baiai and Ms Trzcinska met in this country in August 2004 and started a relationship in about October of that year. He is an Algerian national, now aged 37, and a Muslim. He entered the country illegally in February 2002 and has remained here unlawfully since then. He was given temporary admission by an immigration officer on 24 May 2005. Ms Trzcinska, now aged 28, is a Polish national who came to this country as a worker in July 2004 following Poland's accession to the European Union. She is a Roman Catholic. As a national of the European Economic Area and a worker she has a right to reside in this country. Mr Baiai and Ms Trzcinska stated that they wished to marry before starting a family. On 31 January 2005 Mr Baiai applied to the Secretary of State for his written permission to marry in the United Kingdom pursuant to section 19(3)(b) of the 2004 Act. By letters of 15 February and 15 April that application was refused. On 8 March 2005 Mr Baiai and Ms Trzcinska together issued an application for judicial review of the refusal. Following the order of the Court of Appeal made on 23 May 2007 the Secretary of State issued a Certificate of Approval (CoA) giving Mr Baiai and Ms Trzcinska permission to marry, and they have since married.

3

Mr Bigoku and Ms Agolli, aged 35 and 24 respectively, are both nationals of the Former Republic of Yugoslavia and are both Muslims. Both are of Albanian ethnicity, but his home was in Kosovo and hers in Serbia. He arrived in this country on 28 October 1998 and applied for asylum the next day. On 19 July 1999 he was granted Exceptional Leave to Remain for one year, under a concession then in force, without prejudice to his asylum claim, and this leave duly expired a year later. He was interviewed by the Home Office on 7 June 2001 and his asylum claim was refused 4½ years later. Ms Agolli's date of arrival in this country is not precisely known, but she was granted Exceptional Leave to Remain on 31 January 2003, to expire on 31 January 2007. Mr Bigoku and Ms Agolli applied, separately, for the Secretary of State's written permission to marry on 13 May 2005. There was some delay in considering their applications and on 2 September 2005 they issued a joint application for judicial review. On 15 September 2005 the Secretary of State issued to both respondents a Certificate of Approval, giving them written permission to marry, expiring on 15 December 2005. They married. In the light of this decision these respondents were invited to withdraw their application for judicial review, but they declined to do so.

4

Ms Melek Tilki and Mr Mehmet Ince are both Turkish nationals and both Muslims, aged 20 and 38 respectively. They are cousins and had known each other in Turkey before they came to this country. She arrived on 8 November 2004 and applied for asylum. Her application was refused on 9 December 2004 but she was granted Limited Leave to Remain on a discretionary basis. This leave expired on 4 September 2005 and no further grant of leave has been made. She is therefore an overstayer. Mr Ince had arrived earlier, on 11 September 2001, and had been granted Indefinite Leave to Remain on 22 July 2002. Shortly after Ms Tilki's arrival in this country, in November 2004, she and Mr Ince investigated the possibility of marriage. In early 2005 she became pregnant and in March 2005 her parents gave their consent to her marrying Mr Ince, such consent being required because she was aged 17. On 22 June 2005 Ms Tilki applied for the Secretary of State's written permission to marry, also challenging the lawfulness of the requirement to seek such permission. This application was refused on 18 July 2005. On 19 September 2005, after expiry of her Limited Leave to Remain, Ms Tilki issued proceedings for judicial review to which Mr Ince was not a party. Three days later, on 22 September 2005, the Secretary of State issued a Certificate of Approval giving Ms Tilki permission (expiring on 29 December 2005) to marry Mr Ince and they were married. She was then invited to withdraw her claim for judicial review but she chose to pursue her challenge.

5

Although enacted nearly 60 years ago, the Marriage Act 1949, amended from time to time since, remains the primary statute governing the solemnisation of marriages in England and (very largely) Wales. It draws a sharp distinction between marriages solemnised according to the rites of the Anglican Church in England or Wales following the reading of banns or the grant of an Archbishop's licence or a common licence ("ecclesiastical preliminaries"), the subject of Part II of the Act, and marriages solemnised on the authority of a certificate of a superintendent registrar, the subject of Part III. The broad effect of the Act is that any marriage not solemnised according to the rites of the Church of England following ecclesiastical preliminaries must be, in effect, licensed by the certificate of a superintendent registrar even if, before or after, a religious ceremony has taken place. This appeal is solely concerned with marriages falling within Part III of the Act.

6

The Immigration Rules, and the right to respect for family life protected by article 8 of the European Convention, confer a measure of protection on some persons having limited or no leave to enter or remain in this country who marry here. This gives rise to an acute and difficult administrative problem: that persons seeking leave to enter or remain in this country may marry here, not for the reasons which ordinarily and legitimately lead people to marry, but in order to strengthen their claims for leave to enter or remain. Such marriages have been variously described as "bogus" and "sham" and as "marriages of convenience". All are descriptions of marriages entered into for the purpose of securing an immigration advantage. It is difficult to improve on the definition (which the Secretary of State accepts as apposite) in article 1 of the EC Council Resolution 97/ C382/01 of 4 December 1997 on measures to be adopted on the combating of marriages of convenience, according to which a marriage of convenience is

"a marriage concluded between a national of a Member State or a third-country national legally resident in a Member State and a third-country national, with the sole aim of circumventing the rules on entry and residence of third-country nationals and obtaining for the third-country national a residence permit or authority to reside in a Member State".

I shall refer to marriages of convenience in that sense.

7

The Resolution just referred to reflected the concern among European states about marriages of convenience so defined. The recitals to the Resolution noted that marriages of convenience constituted a means of circumventing the rules on entry and residence of third-country nationals, described the objective of the Resolution as being not to introduce systematic checks on all marriages with third-country nationals but to provide for checks where there were well-founded suspicions that a marriage was or would be one of convenience and recognised the possibility that member states might check whether a marriage was one of convenience before it was performed. The Resolution listed factors which might provide grounds for believing that a marriage was one of convenience: for example, that matrimonial cohabitation was not maintained, that the spouses had never met before their marriage, that the spouses gave inconsistent particulars of their respective personal histories and circumstances, and that the spouses spoke no common language. The Resolution provided that where there were factors which supported suspicions for believing that a marriage was one of convenience, member states should issue a residence permit or authority to the third-country national on the basis of the marriage only after the competent national authorities had checked...

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