R (on the application of Quila and Another) v Secretary of State for the Home Department [Sup Ct]
| Jurisdiction | England & Wales |
| Judge | LADY HALE,LORD PHILLIPS AND LORD CLARKE,LORD WILSON,LORD BROWN |
| Judgment Date | 12 October 2011 |
| Neutral Citation | [2011] UKSC 45 |
| Date | 12 October 2011 |
| Court | Supreme Court |
[2011] UKSC 45
Lord Phillips, President
Lady Hale
Lord Brown
Lord Clarke
Lord Wilson
Appellant
Angus McCullough QC
Andrea Lindsay Strugo
(Instructed by Treasury Solicitors)
Respondent (Quila)
Richard Drabble QC
Christopher Jacobs
(Instructed by Joint Council for the Welfare of Immigrants)
Appellant
Angus McCullough QC
Andrea Lindsay Strugo
(Instructed by Treasury Solicitors)
Respondent (Bibi)
Al Mustakim
Lina Mattsson
(Instructed by Davies Blunden and Evans Solicitors)
Intervener
(The AIRE Centre)
Karon Monaghan QC
Shahram Taghavi
Eric Fripp
(Instructed by Bates Wells & Braithwaite LLP)
Intervener
(Southall Black Sisters and the Henna Foundation)
Henry Setright QC
Michael Gration
(Instructed by Dawson Cornwell)
Intervener (The Asian Community Action Group, Sheffield)
Satvinder Juss
(Instructed by Riaz Khan & Co)
Heard on 8 and 9 June 2011
These two appeals relate to one of the rules currently in force by which the appellant, the Secretary of State for the Home Department, determines an application for a visa to enter or remain in the United Kingdom made by the spouse of a person who is present and settled in the UK ("a marriage visa").
The Secretary of State appeals against the order of the Court of Appeal dated 21 December 2010 (Sedley, Pitchford and Gross LJJ) [2010] EWCA Civ 1482, [2011] 3 All ER 81) by which it declared that her application of the rule so as to refuse marriage visas to the two effective respondents was unlawful as being—so the majority concluded—in breach of their rights under article 8 of the European Convention on Human Rights and Fundamental Freedoms 1950 ("the ECHR"). In effect pursuant to supplementary orders made by the Court of Appeal the Secretary of State has now granted marriage visas to each of the two respondents. But her appeals to this court, although academic for them, retain a general importance which has justified their continued prosecution.
The rule is rule 277 of the Immigration Rules 1994 (HC395). The version of the rule which, as substituted by HC1113, came into force on 27 November 2008 was 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 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."
That rule therefore governed "a spouse or civil partner". There were parallel rules which governed "a fiancé(e) or proposed civil partner" (rule 289AA) and "an unmarried or same-sex partner" (rule 295AA).
A "sponsor" is defined by rule 6 as "the person in relation to whom an applicant is seeking leave to enter or remain as their spouse (etc)". Thus, for present purposes, the "sponsor" is the spouse who is present and settled in the UK,for example (as in each of the cases before the court) a British citizen present and ordinarily resident in the UK. The "applicant" is the other spouse.
Prior to 27 November 2008 rule 277—like the parallel rules—was in the same terms save only that its reference to age was "under 18" rather than "under 21". Such had been the rule since December 2004, when the minimum age for the applicant had been raised from 16 to 18 so as to become the same as the minimum age for the sponsor, which had been raised to the same extent in April 2003.
With effect from 6 April 2010 rule 277—like the parallel rules—was amended in a small and largely irrelevant respect. After the words "under 21" were inserted, in parenthesis, the words "or aged under 18 if either party is a serving member of HM Forces".
The appeals require focus upon the Secretary of State's purpose in amending rule 277 so as to provide that, with effect from 27 November 2008, a marriage visa should not—in the absence of exceptional, compassionate circumstances which would attract the exercise of her discretion outside the ambit of the rules—be granted until both the sponsor and the applicant had attained the age of 21.
The Secretary of State's purpose is clear. It was not to control immigration. It was to deter forced marriages. At the heart of the appeals is her analysis of the nexus between entry into a forced marriage and the increase in the minimum ages requisite for the grant of a marriage visa. No one could contend that the nexus is very obvious.
A forced marriage is a marriage into which one party enters not only without her or his free and full consent but also as a result of force including coercion by threats or by other psychological means: section 63A(4) and (6) of the Family Law Act 1996, inserted into it by section 1 of the Forced Marriage (Civil Protection) Act 2007 ("the Act of 2007"). The forcing of a person into marriage is a gross and abhorrent violation of her or his rights under, for example, article 16(2) of the Universal Declaration of Human Rights 1948, article 23(3) of the International Covenant on Civil and Political Rights 1966 and article 12 of the ECHR. A forced marriage is entirely different from an arranged marriage in which, in conformity with their cultural expectations, two persons consent to marry each other pursuant to an arrangement negotiated between their respective families. The prevalence of forced marriage within sections of our community in the UK hascome increasingly to the attention of a shocked public during, say, the last 12 years as victims of it, or witnesses to it, have at last and less infrequently summoned the courage to report it. In 1999 the Home Office established a Forced Marriage Working Group, which published its findings in 2000. Parliament has responded actively to revelation of the problem by enactment of the Act of 2007, which provides the court with a flexible jurisdiction to make orders protective of a person who may be, or has been, forced into marriage. Under renewed discussion is whether there is any value in also making the act of forcing a person into marriage into a specific criminal offence. The other main instrument of the state's response to the revelation of the problem has been the creation in 2005 by the Home Office and the Foreign and Commonwealth Office of the Forced Marriage Unit ("the FMU").
In November 2008 the Secretary of State published guidance under section 63Q of the Family Law Act 1996, as inserted by the Act of 2007. It was for the benefit of those exercising public functions potentially relevant to instances of forced marriage. In the guidance the Secretary of State addressed the motives of those who forced a person to marry in the following terms:
"36 Some of the key motives that have been identified are:
• Controlling unwanted sexuality (including perceived promiscuity, or being lesbian, gay, bisexual or transgender)—particularly the behaviour and sexuality of women.
• Controlling unwanted behaviour, for example, alcohol and drug use, wearing make-up or behaving in a 'westernised manner'.
• Preventing 'unsuitable' relationships, e.g. outside the ethnic, cultural, religious or caste group.
• Protecting 'family honour' or 'izzat'.
• Responding to peer group or family pressure.
• Attempting to strengthen family links.
• Achieving financial gain.
• Ensuring land, property and wealth remain within the family.
• Protecting perceived cultural ideals.
Protecting perceived religious ideals which are misguided.
• Ensuring care for a child or vulnerable adult with special needs when parents or existing carers are unable to fulfil that role.
• Assisting claims for UK residence and citizenship.
• Long-standing family commitments."
Thus "Assisting claims for UK residence and citizenship" was one of 13 suggested motives.
Data included in the guidance or otherwise provided by the FMU suggest the following:
(a) most persons forced into marriage in the UK are female;
(b) for example 86% of the 815 possible cases of forced marriage considered by the FMU between September 2009 and February 2010 related to female victims;
(c) most victims are aged between 13 and 29;
(d) more particularly, of the 145 cases in 2005 in which the FMU provided direct support (as opposed to general or preliminary advice) to victims or potential victims of forced marriage, 44, i.e. 30%, related to victims aged between 18 and20; in 2006 the number of victims of that age was again 44 albeit out of 167 cases, i.e. 26%; and in 2007 the number was 69 out of 212 cases, i.e. 33%;
(e) it is usually the parents (or one of them) of the victim who apply the force;
(f) most victims are members of South Asian families; and
(g) for example, of the cases in which the FMU gave general or preliminary advice in 2008, 2009 and 2010, over 70% related to families of Pakistani, Bangladeshi or (to a much lesser extent) Indian origin.
Mr Aguilar Quila, the first respondent, is a national of Chile who was born on 12 July 1990. His wife, Ms Amber Aguilar, is a British citizen who was born on 25 April 1991 and who until 2009 lived in England. They began a relationship in 2006 when, with his parents, the first respondent was living temporarily in London. Later, on 17 August 2008, he returned to the UK on a student visa which was expressed to expire on 3 August 2009. In September 2008 they became engaged and on 22 November 2008 they were married. The Secretary of State acknowledges that they married because they were in love. By then they were...
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