Secretary of State for the Home Department v Baiai & Ors [2007] EWCA Civ 478

[2007] EWCA Civ 478Case No C4/2006/1469
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
MR JUSTICE SILBER
CO/1460/2005; CO/6898/2005; CO/7442/2005
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 23/05/2007
Before
Lord Justice WallerVice-President of the Court of Appeal (Civil Division)Lord Justice BuxtonLord Justice Lloyd
Between
The Secretary of State for the Home DepartmentAppellant
Case No C4/2006/1469
(Transcript of the Handed Down Judgment ofWordWave International LtdA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7421 4040 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Miss Monica Carss-Frisk QC, Mr Angus McCullough and Mr Richard Mumford(instructed by the Solicitor to Her Majesty’s Treasury) for AppellantMr Ramby de Mello, Mr Satvinder Singh Juss and Mr Adrian Berry (instructed by David Tang & Co) for respondents Baiai and TrzcinskaMr Manjit Gill QC and Mr James Collins (instructed by Sheikh & Co) for respondents Bigoku, Agolli and TilkiMr Richard Drabble QC and Mr Eric Fripp (instructed by The Joint Council for Welfare of Immigrants) for the IntervenerCase No C4/2006/1621
Between
Mahmoud Baiai and Izabela TrzcinskaAppellants
Mr Ramby de Mello, Mr Satvinder Singh Juss and Mr Adrian Berry (instructed by David Tang & Co) for AppellantsMiss Monica Carss-Frisk QC, Mr Angus McCullough and Mr Richard Mumford(instructed by the Solicitor to Her Majesty’s Treasury) for RespondentMr Richard Drabble QC and Mr Eric Fripp (instructed by The Joint Council for Welfare of Immigrants) for the IntervenerHearing Hearing dates : 30 April-2 May 2007
JudgmentLord Justice Buxton :Introduction
[1]These appeals raise important questions as to the compatibility with the European Convention on Human Rights [ECHR] of primary and secondary legislation requiring certain persons who are subject to immigration control to secure the permission of the Secretary of State before they marry. The Secretary of State’s object in promoting the legislation is to prevent the persons to whom it applies from entering into marriages of convenience (a concept that will have to be further explored), in the interests of disabling such persons from obtaining advantages in the immigration process because of their married state.[2]I will refer to the legislation taken as a whole as “the scheme”. How in detail it works is set out in §§ 2-16 of the judgment below of Silber J, [2007] 1 WLR 693, which I would respectfully commend to anyone who needs further enlightenment than I have judged it necessary to provide in order to explain the particular issues that arise on these appeals. By way of summary, the scheme applies to any person subject to immigration control (that is, a person who is not an EEA national, and who requires leave to enter or remain in the United Kingdom under the Immigration Act 1971). The only persons subject to immigration control who are outside the scheme are those who are “settled” in the United Kingdom: see §15 of the first judgment of Silber J, and § 9(ii) below. Other than settled persons, persons subject to immigration control, if they wish to marry in the United Kingdom, can only do so if the Secretary of State provides them with a Certificate of Approval [COA]. The Secretary of State’s current policy, which is in issue in these appeals, is to refuse a COA to anyone who does not have a valid right to enter or remain in the United Kingdom for more than six months, and with more than three months of that period outstanding. Absent a COA, and still wishing to marry, such a person has to leave the United Kingdom, and either marry abroad or apply from abroad for entry clearance in order to marry here. The exceptions to this policy are where the applicant’s initial application for immigration status, or an appeal in that connexion, has been outstanding for more than 18 months; or if there are compelling compassionate circumstances that make it unreasonable to expect the couple to travel and marry abroad. A further exception, found in the statutory foundation of the regime, section 19 of Asylum and Immigration (Treatment of Claimants, etc) Act 2004, is that the scheme does not apply at all to persons whose marriage is solemnised according to the rites of the Anglican Church under Part II of the Marriage Act 1949.[3]The various claimants complained that the scheme is inconsistent with article 12 of the ECHR (right to marry), and also, because of the exemption for Anglican marriages, with article 14 (discrimination). Ms Trzcinska, a citizen of the Republic of Poland, and Mr Baiai, a citizen of the Republic of Algeria who is illegally in this country who wishes to marry Ms Trzcinska here, also raised specific issues based on her status as a citizen of the European Union. It was agreed below that the judge would not pass on that part of the case, the claimants being at liberty to restore the issue to him if so advised. They have not taken that step, and we declined an invitation to reopen those issues ourselves.[4]Silber J delivered three judgments in the course of his enquiry. The first judgment, [2007] 1 WLR 693, addressed the general status of the scheme. The judge held, first, that section 19 of the 2004 Act was incompatible with articles 12 and 14 because the exclusion from the scheme of marriages according to Anglican rites disproportionately discriminated on grounds of nationality and religion against persons who were unwilling or unable to benefit from that exception. Second, the judge held that the scheme itself was a disproportionate interference with the article 12 rights of the persons to whom it applied. For completeness, I should add that the judge also found to be discriminatory the fee of £135 charged for a COA, persons entering an Anglican marriage not having to pay that fee. It was not suggested before us that the fee raised any separate issue.[5]The judge’s second judgment related to damages claims arising out of the first judgment. No issue arises before us in that respect, and we have not been shown the second judgment. However, in the course of argument in relation to the damages issue it became apparent that the voluminous lists of issues agreed by counsel in the first proceedings had not addressed an issue that the Secretary of State said that he wished to be determined, and as a matter of urgency, namely whether, notwithstanding the conclusions of the first judgment, the Secretary of State was still entitled to refuse a COA to someone such as Mr Baiai, who is not only a person subject to immigration control, but also a specifically “illegal” immigrant: that is, he has no valid leave, not even a temporary leave, to enter or remain in the United Kingdom. The judge was told that because of other commitments of counsel who had argued the case so far an oral hearing within a practicable measure of time would not be possible. He therefore agreed to resolve the matter on the basis of written submissions only. I do not criticise the judge for taking that course, not least because he was seeking to assist the parties in circumstances of which I am not fully aware, but I share his disquiet, set out at [2007] 1 WLR 735 §§ 75-76, at this turn of events. In that, the third judgment, the judge determined that the Secretary of State had been entitled to refuse a COA to Mr Baiai without infringing his rights under the ECHR.[6]In the first appeal, C4/2006/1469, the Secretary of State appeals against the judge’s conclusion in the first judgment that the Secretary of State’s policy with regard to the issue of COAs, as summarised in §2 above, is unlawful as being inconsistent with both article 12 and article 14 of the ECHR. In his original written submissions to this court the Secretary of State also sought to appeal against the judge’s declaration that section 19 of the 2004 Act, the source of the exemption for Anglican marriages, was incompatible with article 14, contending that the machinery of Anglican marriage contained safeguards, absent elsewhere, against its use for marriages of convenience. However, before the appeal opened the Secretary of State told us that he no longer sought to appeal that part of the judge’s order, and that legislation would be passed in due course to remove the discriminatory aspects of the present scheme. The Secretary of State was not, however, able to tell us what exact aspects of the scheme he accepted to be discriminatory, nor what exact steps he would be taking to rectify that breach of the law. We explained to Miss Carss-Frisk QC, for the Secretary of State, that we would have to adjudicate on the extant appeals on the basis of the whole scheme as it stood before Silber J, and indeed as it still stands. That was initially thought to cause some potential difficulty, since the discriminatory nature of the scheme was a significant factor in leading the judge to his conclusion that the scheme is objectionable under article 12 as well as under article 14. However, as argument progressed it became clear, as I explain in §39 below, that there are other and dispositive objections to the scheme in the context of article 12 that do not depend on the discriminatory elements found by the judge.[7]In the second appeal, C4/2006/1621, Mr Baiai and Ms Trzcinska appeal against the judge’s conclusion in the third judgment. The Joint Council for the Welfare of Immigrants (represented by Mr Drabble QC and Mr Fripp, whom we thank for their pro bono contribution both here and below) intervenes to support the respondents in the first appeal and the appellants in the second appeal.[8]The arguments before us ranged widely, and into some uncharted waters in terms both of the law and of the facts. In order to bring some order to the case I cannot avoid dealing with a range of preliminary issues. I address only those matters necessary for an understanding of my conclusions. As I have already said, a more general account of the case can be found in the full judgments delivered by Silber J.

The history and position of the claimants

[9]Although we are concerned principally with the general nature of the scheme, we have also to consider the particular position of the various claimants; and, in addition, the effect upon them of the application of the scheme can be used to illustrate its general reach and purpose. It will be convenient at this stage to bear in mind that the Secretary of State is particularly concerned about marriages by persons subject to immigration control to two classes of other person. Those classes are as follows: i) EEA nationals. These are persons who are citizens of one of the countries in the European Economic Area, who have a right to remain in this country as a worker or other qualified person (eg students or job-seekers) as defined in regulation 6 of the Immigration (European Economic Area) Regulations 2006 [the 2006 Regulations]. ii) Persons “settled” in the United Kingdom. This category includes British citizens, but also other persons who, although still subject to immigration control, have various permissions, such as indefinite leave to remain, that give them a right of permanent residence here without restriction as to the period for which they may remain.[10]The history and position of the various claimants can now be set out. Fuller details if required can be found in §§ 17-29 of the first judgment. i) Baiai and Trzcinska. Mr Baiai is an Algerian, illegally in this country without any attempt to regularise his immigration status since February 2002. Ms Trzcinska, as a citizen of Poland working here, is an EEA national. The couple met in August 2004, and started a relationship. Mr Baiai needed to apply for a COA because he had no leave at all to remain in the United Kingdom. He so applied in January 2005, and was refused in February 2005. ii) Bigoku and Agolli. Mr Bigoku is a national of the former Republic of Yugoslavia who arrived in the United Kingdom and claimed asylum in 1998. He was granted exceptional leave to remain under a concession then in force until July 2000. His asylum claim was not however rejected until January 2006. Ms Agolli is also a national of the former Republic of Yugoslavia who was granted exceptional leave to remain, to expire on 31 January 2007. Both of them are subject to immigration control, and accordingly submitted applications for separate COAs on 13 May 2005, which were granted in September 2005. We were told by Miss Carss-Frisk that that decision was influenced by the very long period over which Mr Bigoku had waited for a decision on his asylum claim, and also by medical considerations that advised against travel abroad. Mr Bigoku and Ms Agolli nonetheless persist in their claim, seeking damages for the alleged delay in dealing with their COA application. Both of them are subject to immigration control, and thus subject to the regime. Neither of them fall into either of the categories summarised in §9 above. iii) Ms Tilki is a Turkish national whose application for asylum was refused in December 2004, she being granted limited leave to remain expiring in September 2005. She wished to marry a Mr Mehmet Ince, also a Turkish national. He was granted indefinite leave to remain in July 2002, and therefore is a settled person (see § 9(ii) above). She applied for a COA in June 2005, which was granted in September 2005, despite her not falling within the principal category to which under the policy COAs are granted. We were told by Miss Carss-Frisk that the decision was based on Ms Tilki’s then pregnancy. She also nonetheless continues her proceedings in the hope of recovering damages for the delay in attending to her application for a COA.

The Secretary of State’s reasons for introducing the scheme

[11]The Secretary of State produced evidence to demonstrate his reasons for adopting the scheme, and the justification for it. That evidence fell into two categories: the advantages obtained by persons subject to immigration control if they entered into the married state; and the high incidence of marriages of convenience amongst the category of persons subject to immigration control that is targeted by the scheme; namely, as already set out, persons with less than six months leave to remain in the United Kingdom, and with less than three months of that leave remaining at the time of their application. I deal with those two aspects of the problem in turn.

The immigration advantages of marriage

[12]Evidence explaining this part of the Secretary of State’s policy was given by Miss Alison Bennett, an assistant director in the immigration and nationality department of the Home Office. The judge set out a substantial account of that evidence in §§ 65-70 of his first judgment. He explained that what are now the 2006 Regulations contain provisions which allow non-EEA nationals to remain in the United Kingdom on the basis of their marriage to British citizens, persons settled in the United Kingdom and EEA nationals. Upon marriage, a non-EEA spouse of an EEA national has a right of residence in the United Kingdom if the EEA national is exercising treaty rights in the United Kingdom and is entitled to a five-year residence document. The judge continued:66. After four years, there is an avenue to permanent residence available for that spouse provided that his or her EEA national spouse continues to exercise treaty rights. A residence permit can be refused if a marriage is shown to be marriage of convenience in the form of a “sham” marriage or if it can be demonstrated that the EEA national is not exercising his or her treaty rights. Miss Bennett states that it is very difficult in practice to prove that a marriage is not genuine after it has taken place.67. Miss Bennett stresses that there have been a substantial number of sham marriages which have taken place notwithstanding the legislation, which was in force before the 2004 Act and the 2005 Order were introduced. She also states these sham marriages give the non-EEA national the chance to obtain substantial rights to remain in the United Kingdom which they would not otherwise have enjoyed. There is a substantial amount of evidence about the large number of such marriages taking place in circumstance in which it is extremely difficult to detect they were sham marriages after they had taken place because, as Miss Bennett explains in her witness statement, that : “in relation to all marriages (both those to EEA nationals and those to British citizens or people settled here) existing enforcement powers were considered insufficient to solve the problem of sham marriages. It is simply not possible to have immigration officers attending every single wedding, or conducting home visits to, or interviews with, every couple who is getting married or who has recently been married, in order to establish whether the marriage is genuine-this would be extremely resource intensive and we do not have such resources available. It was therefore considered that the better solution would be to make it more difficult to enter into sham marriage in the first place”.68. Miss Bennett points out that a marriage by a non-EEA national to either a British national or an EEA national would give the non-EEA national many advantages. Such a marriage could assist a person, who had no basis for coming to or remaining in the United Kingdom by providing a basis on which to apply for entrance clearance as the spouse of a person settled here because: a) the Secretary of State’s marriage policy (DP3/96) provides that removal or deportation will not be enforced if the person subject to deportation or removal was married and has lived together with his or her spouse continuously for at least two years prior or the start of the enforcement action. The beneficiaries of that policy become entitled to a discretionary leave to remain. This is an important factor because, as Miss Bennett points out, it is “relatively common” for persons who are in the United Kingdom unlawfully not to make themselves known to the immigration authorities; b) parties to a sham marriage may seek to rely on that marriage to resist removal on the basis that removal would infringe their rights to a private and family life under Article 8 of the ECHR. Miss Bennett points out first that such claims are “particularly common” where an asylum claim has been made and been rejected and second that it is very difficult to prove that any particular marriage was not genuine but was a sham entered into solely to obtain immigration advantages for the party who is neither a British national nor an EEA national; c) the spouse of a person settled here would ordinarily be expected to regularize their stay so that if they are here unlawfully they would be expected to return home to obtain the appropriate entry clearance as spouse. A sham marriage could assist a person who had no basis for coming to the United Kingdom by providing a basis on which to apply as for entry clearance as the spouse of a person settled here and d) caseworkers dealing with applications for dependants of EEA nationals suspect in many cases that marriages are sham marriages but they are unable to refuse applications on that ground because a lack of resources makes it impossible to conduct a home visit or an interview.69. According to Miss Bennett, third party nationals who marry EEA nationals have a number of immigration advantages over those who marry British nationals and in particular they: a) do not need to live together for their marriage to be regarded as genuine and subsisting; b) are entitled to bring a wider range of dependants into the United Kingdom; c) are not subject to the “no switching rule” which prohibits visitors and certain other categories of foreign categories from applying for leave to remain as the spouse of a British national, as they benefit from Treaty rights as soon as they are married; d) are not required to meet the maintenance and accommodation requirements of the Immigration Rules and e) are not charged for their applications.70. Significantly, as I have explained, Miss Bennett has stressed that once a non-EEA national claims a right to remain in the United Kingdom following a sham marriage to an EEA national exercising Treaty rights, it is difficult to remove them because of the difficulty of establishing that the marriage was not genuine after it has taken place especially because a lack of resources prevents immigration officials from attending every single marriage or conducting home visits or interviews with every couple whether before or after their marriages have taken place.[13]We will have to return to some aspects of that evidence. At this stage, two points may be made. First, the marriages that are said to confer immigration advantages are principally those contracted by persons subject to immigration control either with EEA nationals (as Mr Baiai seeks to do) or with persons settled in the United Kingdom (as Ms Tilki seeks to do). The only way in which it is suggested that an immigration advantage can follow from a marriage between two persons neither of whom fall into either of those categories (such as would be the marriage between Mr Bigoku and Ms Agolli) is that the married state might be used as the basis of a claim to resist deportation in the interests of the protection of family life, under article 8 of the ECHR. Second, it is accepted that the rules on the position of dependants of EEA nationals have built into them an exclusion of marriages of convenience. That is so both in the 2006 Regulations and in Directive 2004/38 on the position of EEA nationals which the Regulations implement. However, it is the evidence of the Secretary of State, quoted above from Miss Bennett, that that exception is theoretical only because of the practical difficulty of detecting sham marriages after they have been entered into and (Miss Carss-Frisk assured us it was also intended to say) before they were entered into. We will have to return to that issue.

The incidence of marriages of convenience

[14]Here again, the Secretary of State produced substantial evidence, which was directed at two elements in his policy. First, as to the problem of “sham” marriages in general. Second, as to the relevance in the immigration context of the policy of the scheme to target marriages entered into by persons with only a short-term leave to remain in this country. The combination of that evidence is to argue that the latter category accounts for a high proportion of all sham marriages, the implication being that those marriages are entered into to improve the person’s immigration status; and that the policy of deterrence of such marriages is necessary to prevent abuse of the immigration system.[15]The first part of this evidence was provided in evidence by or obtained from officials responsible for the conduct of civil marriages. The judge set it out in the following terms in §71 of his first judgment: There is clear and undisputed evidence that there have been a substantial number of sham marriages in the United Kingdom. Mr. Mark Rimmer, the Superintendent Registrar in the London Borough of Brent, has explained that: a) since he took up his position in 1988, there has been a significant problem with sham marriages arranged for the purpose of avoiding immigration control. In many cases, there was no effort to conceal that this was the purpose of the marriage with the illegal entrants admitting that this was the purpose of the marriage. Couples very frequently were unable to converse in the same language and they required interpreters to enable them to communicate with each other. They often appeared to know very little about the person that they were about to marry; b) until early 2001, the only remedy open to him was to report his suspicions to the Registrar General, who could if there was sufficiently compelling evidence then refer the matter to the Immigration Service but he said that nothing appeared to happen as a result of these reports; c) after 2001, the legal position changed, because section 24 of the Immigration and Asylum Act 1999 placed a statutory duty on registrars to report suspicious marriages to the Home Office. In addition with effect from 1 January 2001, couples had to give a minimum of 15 days’ notice to a registrar prior to the marriage taking place, stating where they resided and the nationality of both parties. Registrars were also from that time obliged by statute to report suspicious marriages direct to the Immigration Service; d) these changes made little difference and his personal experience was that about 20% of all marriages conducted between 2001 and the implementation of the 2004 Act were sham in the sense of being entered into “purely to obtain more advantageous immigration status”; e) this meant that during this period, there were about 250 sham marriages alone in Brent. Miss Bennett states that in 2001, 756 reports were received of suspicious marriages, which were forwarded to the Immigration Service but that this number later increased to 1,205 in 2002, to 2,700 in 2003 and to 3700 in 2004 ; f) in some London Boroughs, notably Haringey, up to 50% of marriages were considered to be for the purpose of circumventing immigration control; g) there had been an increasing trend in Brent and also in Westminster where one party to the marriage is subject to immigration control and the other party to be a national from a country from within the EEA (primarily from France, Holland, Portugal and Belgium) to provide utility bills and bank statements as evidence of their address. He explained that upon comparison with the Superintendent Registrar of Westminster City Council, it was discovered that a number of bank statements and utility bills listed identical transactions and balances with the only difference being the name recorded as the account holder. He prepared a significant file of such documents, all of which were found to be forgeries. At a meeting of London registration managers held in December 2003, it became apparent that the majority of districts were receiving similar documents as evidence of addresses of those wishing to marry.[16]Second, Mr Ian Robinson, the family policy adviser at the Home Office, gave evidence that the majority of sham marriages involve persons who are in the United Kingdom illegally or on a short-term basis. In §2 of his witness statement Mr Robinson said this: The marriage provisions were introduced in the light of growing evidence of an increase in the number of marriages taking place where the purpose is to circumvent immigration control (these are referred to by the Home Office, including by me in this Witness Statement, as “sham marriages”, regardless of whether or not the parties actually intend to live together as man and wife). Reports from Registrars and other intelligence sources suggested that the majority of these marriages involve people who are in the United Kingdom illegally or on a short term basis.[17]This evidence was of necessity, in the absence of any investigation of individual cases, in general terms. The judge was no doubt nonetheless right to conclude in §73 of his first judgment that the evidence demonstrates a disturbing problem. However, for the moment we may note that within the target group identified in the policy and by Mr Robinson, persons in the United Kingdom illegally or with only short-term permission, it is not known how many of the marriages sought to be contracted by such persons are in fact “sham” according to the Secretary of State’s definition; nor how many of their marriages, genuine or sham, are with persons falling into the categories set out in §9 above, marriage with whom is thought to give a particular advantage in immigration terms.

Article 12

[18]Article 12 of the ECHR reads: Men and women of marriageable age have the right to marry and found a family, according to the national laws governing the exercise of this right The reference to founding a family is no doubt explained by memories, recent when the ECHR was formulated, of experiments in eugenics. That has mercifully not troubled the Convention countries since 1950, and does not arise in this case. And as the present case revealed, jurisprudence on the reach and status of article 12 as applied to the right to marriage is comparatively limited, only one of the cases put before us having been decided by the ECtHR, as opposed to the former Commission.[19]The controversy in the present case concerns the extent to which states may interfere with the right to marriage in the pursuit of what are recognized to be proper social goals, in particular immigration control. The solution can be drawn from two sources, the bare wording of article 12; and the latitude that the article permits to member states in terms of proportionality. I take those two arguments in turn.

The terms of article 12

[20]In an early case concerning the right of a serving prisoner to marry, Hamer v United Kingdom (1979) 4 EHRR 139, the Commission, in §§ 60 and 62 of its ruling explained the status of national laws in the context of article 12 in these terms: Article 12 guarantees a fundamental “right to marry”. Whilst this is expressed as a “right to marry…according to the national laws governing the exercise of this right”, this does not mean that the scope afforded to national law is unlimited. If it were, Article 12 would be redundant. The role of national law, as the wording of the Article indicates, is to govern the exercise of the right….Such laws may thus lay down formal rules concerning matters such as notice, publicity and the formalities whereby marriage is solemnised. They may also lay down rules of substance based on generally recognised considerations of public interest. Examples [are] rules concerning capacity, consent, prohibited degrees of consanguinity or the prevention of bigamy. However, in the Commission’s opinion national law may not otherwise deprive a person or category of persons of full legal capacity of the right to marry. Nor may it substantially interfere with their exercise of the right [the Commission’s emphasis]. In Hamer’s case the Commission found unanimously that the applicant prisoner’s right to marry had been violated by the United Kingdom government’s decision to refuse him permission to do so, a view that was reinforced by the Commission’s further decision in Draper v United Kingdom (1980) 24 DR 72, holding that a refusal to allow a prisoner temporary release from prison in order to marry involved interference with his article 12 right.[21]It may seem fairly clear from these authorities that the concluding words of article 12, referring to “national laws governing the exercise of [the article 12] right”, do not give states a licence to intervene in marriages in the pursuit of other social goals, but simply relate, as the Commission said in Hamer, to national laws promoting the institution of marriage, such as rules relating to bigamy or consanguinity. That view can be supported from the only case before the ECtHR, F v Switzerland (1987) 10 EHRR 411. A Swiss law placed limitations on the remarriage of someone who had been the guilty party in previous divorce proceedings. The ECtHR recognized that the national law sought to promote stability in marriage, but held at its §40 that the disputed measure, which affected the very essence of the right to marry, was disproportionate to the legitimate aim pursued 22. must not restrict or reduce the right in such a way or to such an extent that the very essence of the right is impaired… In all the Council of Europe’s member States, these “limitations” appear as conditions and are embodied in procedural or substantive rules. The former relate mainly to publicity and the solemnisation of marriage, while the latter relate primarily to capacity, consent and certain impediments.[22]Thus far, therefore, the jurisprudence does not support the original argument of the Secretary of State that the last eleven words of article 12 gives the state power to limit the article 12 right for public interest reasons: see §§ 50 and 61 of the first judgment. By the same token, however, the jurisprudence does not support the original argument of the claimants that the article 12 right is “absolute” in its nature. That contention, not in the end fully persisted in, sought to put article 12 on the same plane as articles 2 and 3, which confer rights that the member state must respect above all other considerations. That article 12 is not of that nature is shown by the approach of the ECtHR in F v Switzerland, which criticized the national legislation on grounds of lack of proportionality, and not per se because it interfered with the basic article 12 right. And that the national state has at least some freedom of action in relation to article 12 rights is further demonstrated by a number of Commission cases relied on by the Secretary of State, to which I now turn.

Commission authority on article 12

[23]These cases were explored before us in more detail than appears to have been the case before the judge. The cases are not in every respect easy to construe, and as Commission decisions some of them appear to have been only partially reported, at least in the versions shown to us. Nonetheless, they must be taken very seriously, not least because they are all concerned with the interaction between immigration rights and article 12. I set the cases out chronologically in the first instance.[24]In App No 9773/82 v United Kingdom (1982) 5 EHRR 296 a United Kingdom resident, whose sole source of income was an invalidity pension and supplementary benefit, sought entry clearance with a view to marriage for his Filipina fiancé with whom he had corresponded but had never met. Permission was refused under a provision in the Immigration Rules that permitted entry in order to marry only in cases where no extra burden would be placed on public funds. The Commission pointed out that the article 12 right does not, in principle, include the right to choose the geographical location of the marriage, and that the requirement of ability to survive without assistance from public funds was not unreasonably discriminatory under article 14. Moreover, whilst that criterion did not apply to dependent existing spouses, “it cannot be overlooked that the applicant is seeking to establish a new relationship with a foreign person whom he has never actually met”. The complaint under articles 8, 12 and 14 was manifestly ill-founded.[25]In App No 10914/84 v The Netherlands (1986) 8 EHRR 308 it was proposed to expel from the Netherlands an alien with temporary residence rights, on the ground that the basis of those rights had ceased to exist. He sought unsuccessfully to resist that expulsion on the basis of his prospective marriage to a Dutch citizen. A claim that by preventing them from marrying in the Netherlands under Dutch law the Dutch authorities had interfered with the couple’s article 12 rights was dismissed as manifestly ill-founded, the Commission again noting that article 12 does not guarantee the right to marry in a particular country, or under a particular legal system.[26]In Application 31401/96 Sanders v France (1996) 87 B-DR 160 the applicants, a male Turkish national and a female French national, living together in Istanbul, complained of delays in obtaining a certificate of capacity to marry under French law. The main part of the report suggests that the issue as to the obtaining of a certificate related to (alleged) concerns about the prospective wife’s mental capacity to marry, under section 175 of the French Civil Code. However, in addressing the complaint under article 12 the Commission, having noted F v Switzerland in the terms reported in §21 above, went on to say: The Commission notes that, in the present case, the issue concerns substantive rules, the purpose of which is, inter alia, to preclude marriages of convenience between French citizens and aliens. It does not find this limitation, in itself, [scil., per se] to be contrary to Article 12 of the Convention. Although one could wish that the matter were before us more fully, that is a fairly clear acknowledgment, albeit in general terms, that the relativist approach to article 12 left open in F v Switzerland can extend to the limitation of some marriages or alleged marriages in the interests of immigration control.[27]In Klip and Kruger v Netherlands (1997) 91-A DR 66 the applicants complained that article 12 rights were infringed because a Dutch Act on prevention and suppression of marriages of convenience required a systematic examination of all intended marriages involving aliens. This required the parties covered by the legislation to provide statements, which could lead the public prosecutor to oppose a marriage if the primary purpose of one or both of the parties wishing to get married was to obtain entry into the Netherlands. The Commission rejected the complaint as manifestly ill-founded, saying that the purpose of [the rules] is to prevent marriages of convenience between Dutch nationals and aliens for immigration purposes. In this respect the Commission recalls that the Dutch immigration policy is clearly related to the economic well-being of the country, in particular to the authorities’ concern, given the population density in the Netherlands, to regulate the labour market. Although in the circumstances of the present case the relevance of the statement at issue may be questionable, the Commission cannot find the limitation at issue, namely the applicants’ obligation to submit a statement…to be contrary to article 12[28]This again is a clear recognition that some limitations may be put on the right to marry in the interests of immigration control. The complaint in Klip was limited to the requirement of prior scrutiny, but that requirement was justified on the basis that it might lead to a legitimate prevention of the marriage.

Conclusions on the ambit of article 12

[29]I would draw the following conclusions from the jurisprudence on article 12: i) Although not “absolute” in nature, the right to marry is recognized as an important and fundamental right, not to be lightly interfered with. That is clear from the observations of the Commission in Hamer, and of the ECtHR in F v Switzerland. ii) The terms of the article itself, and the jurisprudence, recognize and support national laws that ensure that “marriages” are proper and properly engaged in. Hamer and F v Switzerland are, again, authority for that approach. iii) It might seem to follow from (ii) that it would be legitimate for states to ban any marriages of convenience, and not just those which are entered into to avoid immigration control. However, that step has not yet been taken or, rather, has not yet arisen at least in such Convention jurisprudence as we have been shown. But that part of the jurisprudence explains why, in the Commission cases reviewed above, there was regarded as legitimate not only the end, control of immigration, but also the means, prohibition of marriages of convenience. iv) Article 12 does not confer any right to marry in a particular country, even if the parties are currently present in the country in which they wish to marry: App No 10914/84, §25 above. v) There is no firm suggestion that a state may interfere with genuine marriages (ie marriages that are not marriages of convenience) in the interests of immigration control or of any other part of social policy. Miss Carss-Frisk argued that such interference was envisaged in two of the cases relied on by her, Application 9773/82 v UK (§ 24 above); and Application 10914/84 v Netherlands (§ 25 above). However, in the first case the applicant wished to bring his fiancée into the country to marry her in circumstances of which the Commission was plainly highly sceptical; and the second case appears to have been approached on the basis that the applicant was liable to expulsion, on good grounds, and that expulsion could not be interfered with by a claim to marry in the Netherlands rather than in Morocco. In neither case was the issue as to genuine marriage confronted in terms, or indeed at all. At the most, the cases go no further than to support the proposition enunciated in both of them that article 12 does not confer a right to marry in any particular country. vi) If a state did institute a policy of inhibiting genuine marriage that would raise serious issues both under article 12 and under immigration law. As I have suggested in sub-paragraphs (ii) and (iii) above, inhibition of marriages of convenience can be seen as reinforcing, and not as undermining, article 12’s support for “marriage”. And immigration law gives rights to the spouses of persons with immigration rights for that same reason, that marriage is an institution that states should respect.

The court’s approach to state policy in relation to article 12

[30]The judge, at §60 of the first judgment, considered this question under the heading “What deference should be shown by a court to a decision of the executive or of the legislature in respect of policy affecting article 12 rights?” The discussion in terms of “deference”, eagerly adopted by the Secretary of State, was perhaps unfortunate, but the essence of issue was nonetheless clear: whether the article 12 right is of a nature that invites control by the courts, or whether on the other hand it engages matters of social policy in which the legislature and the executive, rather than the courts, are expert.[31]The judge’s conclusion on that issue was as set out in §63 of the first judgment: I therefore accept the submission of Miss Carss-Frisk that the Secretary of State and Parliament are entitled to substantial deference in determining what restrictions, if any, are appropriate to impose on article 12 rights and I will apply that approach when considering the issue of proportionality to which I now turn. To see how the judge reached that conclusion it is necessary to set out the three paragraphs that preceded it, §§ 59-62 of the first judgment: It is common ground that the approach to this problem was summarised by Dyson LJ when he explained in Samaroo and Sezek v Secretary of State[2001] UKHRR 1150 at §35 that he had:
“been assisted by the discussion at paragraph 3.26 of Human Rights Law and Practice (Butterworth 1999), of which Lord Lester of Herne Hill QC and David Pannick QC are the general editors. They identify the following factors: (a) the nature of the Convention right: is the right absolute or (as in the case of Article 8) does it require a balance to be struck? The court is less likely to defer to the opinion of the decision-maker in the former case than the latter. (b) the extent to which the issues require consideration of social, economic or political factors. The court will usually accord considerable deference in such cases because it is not expert in the realm of policy-making, nor should it be because it is not democratically elected or accountable. (c) The extent to which the court has special expertise, for example in relation to criminal matters. (d) Where the rights claimed are of especial importance, ‘a high degree of constitutional protection’ will be appropriate. The European Court of Human Rights has recognised as being of especial importance rights to freedom of expression and access to the courts” 61. As to factor (a) in this formulation, there has been a dispute as to whether article 12 is an absolute right or a right which requires a balance to be struck. In my view, article 12 is not an absolute right because, as I have explained in paragraphs 50 to 57 above, the last eleven words of article 12 entitle member states to strike a balance because, as was explained in Hamer v United Kingdom, at §62, those states “may also lay down rules of substance based on recognised considerations of public interest” 62. Moving to factor (b), issues of immigration and sham marriages are classic examples of areas, which require consideration of social and also political issues and in these matters the legislature and the executive are entitled to substantial deference because they, unlike the judiciary, are the designated experts in the realm of policy-making in these fields. The remaining factors show that the Secretary of State and the legislature are entitled to substantial deference because as to factor (c), the courts do not have any special expertise on immigration policy and in respect of factor (d), the right to marry, although an important fundamental right, does not qualify as one of “the rights claimed ... of especial importance”
. Indeed it is significant that in Samaroo, at §36, Dyson LJ stated that the article 8 right to family life is “not regarded as a right which requires a high degree of constitutional protection”. There is a substantial overlap between articles 12 and 8 as they both concern family life and if, as I consider to be the true position, article 8 is not one of “the rights claimed ... of especial importance”, then article 12 must be also be regarded in a similar way.[32]The point of departure of this analysis may have been common ground, but I cannot agree with the conclusion at which it arrived. First, neither in its terms nor in its jurisprudence is article 12 relativist in the same way as is article 8. The judge was not assisted by the argument, wrongly based on what was said about the last words of article 12 in Hamer, that the article contains within it a general power to derogate from its terms on grounds of public interest, in the manner of article 8(2): as to that argument, see §21 above. Second, whatever may have been the intention of its framers, article 8 now extends to such a variety of situations, as disparate as the right of an accountant not to have his office searched (Niemitz v Germany (1993) 16 EHRR 241) or a dispute between a public figure and the magazine that takes pictures of her (Von Hannover v Germany (2005) 40 EHRR 1), that it is difficult or impossible to extract from it any general principle that can simply be transported into the jurisprudence of a different article such as article 12, which is directed at a specific and limited social situation. Third, just because article 12, and article 8 in some but not all of its many aspects, both concern family life, it does not follow that article 12 takes on the qualities that were perceived in article 8 at least in Samaroo. Whilst it is not on the same plane as the rights to liberty, freedom of expression and access to the courts, the right to marry is regarded in the jurisprudence as a significant and fundamental right, of the sort that the courts must be vigilant to protect: see § 29(i) above.[33]Nor can I agree with what Silber J drew, in §97 of the first judgment, from the guidance of Lord Nicholls of Birkenhead in Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816. Speaking in §70 of his speech of the reviewing role of the courts Lord Nicholls said: Parliament is charged with the primary responsibility for deciding whether the means chosen to deal with a social problem are both necessary and appropriate. Assessment of the advantages and disadvantages of the various legislative alternatives is primarily a matter for Parliament…. The court will reach a different conclusion from the legislature only when it is apparent that the legislature has attached insufficient importance to a person’s Convention right. The readiness of a court to depart from the views of the legislature depends upon the circumstances, one of which is the subject matter of the legislation. The more the legislation concerns matters of broad social policy, the less ready will be a court to intervene. Having quoted that passage, Silber J said: The section 19 regime concerns the need to prevent sham marriages taking place and this purpose can properly be classified as a matter of broad social policy. Thus in accordance with Lord Nicholls’ guidance, the courts should be “less ready” to intervene. But that puts the emphasis in the wrong place. Immigration is certainly a matter of broad social policy, in which the courts will indeed be very hesitant to differ from the judgement of the legislature and the executive. But what is at stake in this case is the Convention right to marry. In deciding whether the scheme adopted in relation to marriages that do or might affect immigration control is lawful in Convention terms, the court is under a duty, as Lord Nicholls said that it is, to assess whether the scheme attaches sufficient importance to that Convention right.[34]The judge accorded too much freedom of action to the Secretary of State in formulating a scheme that interferes with the article 12 right, albeit in pursuit of an objective that it is legitimate for the national state to see as requiring some such interference. Whether the scheme selected and its implementation is proportionate to the end sought is an issue that demands the court’s attention. In making the assessment that the law demands, the importance of the article 12 right, and the limited extent to which member states have been permitted to derogate from it, must be clearly borne in mind.[35]First, however, we must consider the answer that the judge gave to the question of whether the scheme before him was proportionate to its aim. The analysis of Silber J Introduction

The analysis of Silber J

[36]Although I have ventured to differ from some of the judge’s conclusions as to the implications of article 12, I have with equal respect found very helpful his observations about the demands of proportionality in this case. In §43 of his first judgment the judge cited the guidance given by Lord Steyn in R(Daly) v SSHD [2001] 2 AC 532[27], requiring the court to consider whether:(i) the legislative objective is sufficiently important to justify limiting a fundamental right;(ii) the measures designed to meet the legislative objectives are rationally connected to it; and(iii) the means used to impairthe right or freedom are no more than is necessary to accomplish the objective. Within that guidance, under item (i) the judge concluded, at §73 of the first judgment, that the legislative object of preventing sham marriages entered into so as to avoid immigration control was sufficiently important to justify limiting the article 12 right. I would respectfully agree, and the jurisprudence of article 12, summarised in §29 above, justifies a statement in those general terms; though for the reasons set out above I consider that that jurisprudence only supports a more limited interference with the article 12 right than the judge may have envisaged.[37]The judge then treated separately items (ii) and (iii) of Lord Steyn’s formulation, as indeed the terms of that formulation would seem to require. Put shortly, he concluded under item (ii) that the scheme is not “rationally connected” to its legislative aims. He accordingly did not think it necessary to reach any final conclusion as to item (iii), though he analysed the point at some length and made some, with respect, valuable observations in relation to it. However, reading the whole of the judge’s treatment, in §§ 74-105 of the first judgment, it is clear that many of the issues overlap between Lord Steyn’s items (ii) and (iii). Miss Carss-Frisk suggested that the case could be reduced to a single issue, formulated in terms of whether the scheme struck a fair balance, and I would be content to approach it in that way. First, however, I must address the judge’s analysis of item (ii), on the basis of which he held the scheme to fail on grounds of proportionality.

The role of discrimination

[38]In §§ 74-89 of his first judgment the judge set out a range of factors that, as he put it in his §76, “individually or cumulatively lead me to the conclusion that the section 19 regime is not rationally connected to the legislative objective”. Those were, in summary, that the regime:(i) regards all marriages by a person who requires a COA as automatically actually or potentially marriages of convenience;(ii) discriminates irrationally in favour of Anglican marriages conducted under Part II of the 1949 Act;(iii) fails to take account of evidence, if available, that a particular marriage is not a sham;(iv) makes his immigration status the only factor affecting whether a non-EEA national can marry in this country;(v) does not allow representations by persons affected by the scheme. As I have explained in §6 above, the Secretary of State does not now seek to challenge the judge’s conclusion that the scheme is discriminatory, and does not appeal his declaration of incompatibility with article 14; but for other purposes, including the compatibility of the scheme with article 12, we have to proceed with the Anglican exemption still in place.[39]That does not, however, make the judge’s conclusion, or any support for it on the part of this court, academic. Although the judge rightly expressed serious concern about the Anglican exemption, and in particular about the failure of the Secretary of State to address any of the evidence adduced about the integrity of marriages conducted by other religious faiths, the Anglican exemption is essentially a footnote to the scheme as a whole. All that it does is to remove from the scheme what one would think to be a very small number of marriages, those where the authorities of the Anglican church regard both of the parties as qualified for a Part II marriage: a category that by no means includes even all of the practising members of the Anglican church itself. The presence of the exemption makes the scheme discriminatory against everyone who is excluded from Anglican marriage, but the exemption, and therefore the discrimination, could be simply removed without making any difference at all to the other aspects of the scheme that the judge found to be objectionable.[40]It is clear from a fair reading of the judge’s account that he did not regard the discriminatory nature of the scheme as crucial to his conclusion in respect of article 12, even though he did describe it, in §44 of the second judgment, as probably the most important reason for the decision in his first judgment. We can therefore fairly address the remainder of the judge’s reasoning without further reference to the discrimination issue. The judge’s conclusion on proportionality[41]As we have seen, the judge, following Lord Steyn, addressed this issue in terms of whether the scheme was rationally connected to its expressed objective of avoiding sham marriages in the interests of immigration control. Miss Carss-Frisk argued that reasons (iii)-(v), summarised in §38 above, added nothing to reason (i), and that reason (i) was wrong. The only marriages that the scheme made automatically vulnerable in terms of sham were those that fell into the targeted category, and the evidence, in particular that of Mr Robinson set out in §16 above, showed or at least strongly suggested that marriages in that category did include a large proportion of shams. And to the extent that the scheme inhibited a number of genuine marriages, to quote Miss Carss-Frisk’s skeleton in this court “It is open to Parliament to decide that a particular approach is necessary to deal with the mischief in question, even if it may to some extent affect the blameless as well as the guilty”. I deal with those objections in turn.[42]First, the judge was very well aware that he had to address the category of marriages that is actually interfered with by the COA scheme. That is clear from his citation, in §76 of the first judgment, of the criticism of the (then proposed) scheme in the fourteenth report of the Parliamentary Joint Committee on Human Rights: The criteria which it has been suggested will be applied by the Secretary of State in deciding whether or not to approve of marriage in an individual case will not be based on the assessment of the genuineness of a marriage… The length of time for which a person has leave to remain in the UK, for example, has nothing to do with the genuineness or otherwise of any marriage into which he or she proposes to enter. This criterion will effectively operate as a statutory presumption that a marriage involving a person with less than six months leave to stay is not a genuine marriage. But there is no necessary [or] logical connection between the genuineness of a proposed marriage and the length or time which a person has leave to stay in the United Kingdom It was the blanket interference with that category of marriage that, despite his generous view of the ambit of possible derogations from article 12, the judge thought to be disproportionate. The basis of his reasoning can be found at many stages of his judgment, but I would venture to cite, as an example, §85 of the first judgment: A third reason why I have concluded that the new section 19 regime is not rationally connected to the legislative objectives of avoiding sham marriages is that it arbitrarily fails to take into account many factors which might be relevant to considering whether a proposed marriage is a sham, such as clear and corroborated evidence that the parties have enjoyed a loving relationship over a number of years during which they might have had children and might have bought a house together. It is difficult to see why the new regime, which ignores factors such as this, can be “rationally connected” to the legislative aim of avoiding sham marriages. It is noticeable that there is a marked difference between the section 19 regime and the provisions for preventing sham marriages which were the subject of the decisions in Sandersv France 87-B DR 160 and in Klip and Kruger v The Netherlands 91-A DR 66, in which the countries concerned have systems where an investigation takes place in which there is a basis for suspecting that the marriage is a sham so that the authorities thereafter would only prevent marriages taking place which they can show to be sham marriages. In other words, those countries carry out an investigation and then reach a fact sensitive decision on whether the particular marriage is a sham marriage.[43]The judge reached his conclusion, that the scheme unreasonably failed to pay attention to the circumstances of individual cases, having borne well in mind what he described as the virtual impossibility of devising a scheme which does not affect more people than is absolutely necessary, and “the substantial degree of deference which has to be accorded by the court to the legislature and the executive”: see §89 of the first judgment. But he concluded that even taking those matters into account the scheme that he was asked to endorse strayed too far from the objective that was said to justify it. The judge might have gone on to say that, whilst immigration control is accepted to be a legitimate ground for interfering with the article 12 right, all that that does is to open the possibility of some limitations on the article 12 right. It does not mean that the state is free to choose whatsoever means of controlling immigration that it considers prudent or necessary, irrespective of the impact on article 12. And those considerations apply a fortiori if, as I have suggested above, the state’s ability to derogate from article 12 is a good deal narrower than the judge thought it to be.[44]Second, the judge was particularly concerned that, granted the difficulty of formulating any scheme at all, “the new regime suffers from the serious defects that it affects the article 12 rights of substantially very many more people than would be necessary to achieve the legislative purpose of preventing sham marriages”: first judgment, §89. The judge did not say, and was not able to say, how many or what proportion of such people were affected, but that is not a criticism that lies in the mouth of the Secretary of State (and indeed is not made by him), because as the account of his evidence given above indicates the Secretary of State has only very partial knowledge of the extent of the problem, and no reliable figures, indeed no figures at all, as to how many genuine marriages, or marriages not conferring an immigration advantage, fall within the target category for which COAs will be automatically refused. The Secretary of State had two answers to the latter objection. First, as we have seen in §41 above, that it was open to Parliament to introduce a scheme that was necessary to inhibit a legitimate source of concern even if in the process other and unobjectionable cases were caught. Second, that those who require but do not qualify for a COA are not prevented from marrying, but are required to return home and either marry there or apply for entry clearance to marry in the United Kingdom, it being borne in mind that article 12 does not create a right to marry in any particular country: see § 29(iv) above.[45]The first of these contentions rested heavily on some observations of Lord Nicholls of Birkenhead in Wilson, at §73: I have no difficulty in accepting that in suitable instances it is open to Parliament, when Parliament considers the public interest so requires, to decide that compliance with certain formalities is an essential prerequisite to enforcement of certain types of agreements. This course is open to Parliament even though this will sometimes yield a seemingly unreasonable result in a particular case. Considered overall, this course may well be a proportionate response in practice to a perceived social problem. But Lord Nicholls was there saying that a scheme whose objective was to secure the Convention rights of borrowers should not be unshipped just because it affected some moneylenders whose conduct was not objectionable in Convention terms. Quite apart from the considerable difference in terms of social justice and policy between the position of a moneylender and the position of a person who wishes to enter into a genuine marriage, it puts the argument the wrong way round simply to adapt Lord Nicholls’ words to the present case. Under the Secretary of State’s scheme it is persons who legitimately assert Convention rights who are prevented by the broad brush terms of the scheme from exercising those rights; and not, as in Wilson, third parties who must suffer in order to secure the exercise of Convention rights by others. Once it is seen that the scheme inhibits the article 12 rights of persons who are not the legitimate target, in Convention terms, of any restriction of Convention rights, then the judge’s criticism of the scheme is unavoidable.[46]The claim that the scheme is legitimate (whether directed at sham or at genuine marriages) because it relies on the absence of an article 12 right to marry in a particular country has to be seen in context. The Convention rights are available to anyone who is actually present in this country, whether on a short-term basis or even illegitimately. The wish to marry, and certainly the wish to contract a genuine marriage, springs from and has to be seen in the context of that presence. While in theory a requirement that one or both of the parties leave the country, with the object of returning married or to be married, does not prevent the intended marriage from taking place, the reality is very different. First, it seems unreasonable to require a person such as Ms Tilki to give up such immigration status as she has just because she wants to get married. Second, the process of applying for entry clearance from abroad is at best cumbersome, and in practice a very strong deterrent to exercising marriage rights. The judge’s account in §72 of his second judgment may be cited: It is important to stress the very far-reaching adverse consequences for a person who requires a COA but does not receive it especially those who are caught by the provision for automatic refusal. The expectation for this group of people is that either the couple should travel abroad and marry, and then for the partner requiring entry clearance to obtain this from abroad on the basis of his or her marriage; or for the individual requiring entry clearance to travel abroad (with or without his or her fiancée) to obtain entry clearance, from abroad, on the basis of his intended marriage in the UK. The compassionate circumstances may be seen to be applicable where neither expectation is reasonable. Those of us who sit in the Administrative Court for long periods are now very familiar with the delays in the immigration system which are now likely to lead to very substantial delays in handling and resolving applications to enter the United Kingdom from those who have gone abroad to marry.[47]Like the judge, I cannot accept that this degree of interference with an intended marriage in this country between two persons located in this country does not engage their article 12 rights. Nor do I think that a regime that imposes a burden of that order in every case, with savings only in exceptionally compassionate circumstances, is at all what the European Commission had in mind when it said in the context of two particular cases that article 12 gives no right to marry in a particular country.

Conclusion

[48]For the reasons that I have set out, I consider that the judge was right to hold that the scheme fails the test of proportionality, and for the reasons that he gave. In the course of argument before us some further considerations emerged which fortify that conclusion, and which I describe in the next following section. Some part of this material is drawn from the judge’s valuable discussion in §§ 91-105 of the first judgment of whether the scheme was necessary to accomplish the objective of immigration control, albeit that he came to no concluded view on that question.

Further considerations as to the proportionality of the scheme

[49]The judge broadly accepted the submissions of the Secretary of State as to the immigration advantages to be obtained on marriage by persons subject to immigration control: see §§ 12-13 above. Some of those contentions, and the arguments based on them, need further consideration.[50]First, the position of persons subject to immigration control who seek to marry persons who are neither EEA nationals nor settled in the United Kingdom (see §9 above). The only advantage suggested to flow from such a marriage is that a person might seek to base an article 8 claim on the fact of marriage. But it is trite law, for instance as stated by Lord Phillips of Worth Matravers MR in paragraph 55(5) of his judgment in R(Mahmood) v The Home Secretary [2001] 1 WLR 840, that an article 8 claim is unlikely to inhibit the enforcement of immigration law if the claim is based on a relationship entered into when the party knew that his immigration status was precarious: which by definition will be the case if a person falling within the Secretary of State’s target group gets married. We have such a case before us, in the shape of Mr Bigoku and Ms Agolli. There is no good reason, in terms of the enforcement of immigration control, for preventing the marriage of them or of anyone else in their position. That the scheme extends to an unknown number of such irrelevant cases is a further reason why it is disproportionate to the object that is relied on to justify it.[51]Second, as to marriages with settled persons (see §9(ii) above), there was before the judge, and set out by him in §§ 101-102 of the first judgment, substantial evidence as to the procedure required to be followed when a person subject to immigration control applies for an extension of stay in the United Kingdom on the basis of marriage. That requires the completion of a detailed form setting out matters relevant to the stability and genuineness of the relationship. That differs significantly from the information required on the COA form but, as the judge pointed out in his §102, that is because the COA scheme does not turn at all on the genuineness of the marriage, but only on the applicant’s immigration status, together with any compassionate circumstances.[52]The Secretary of State’s evidence, in §31 of Miss Bennett’s statement, said of some 32,000 such applications made each year on the basis of marriage to a settled person, only about 8 per cent are refused. Miss Bennett pointed out that resources were not available to interview both parties to an application, thus perhaps implying, though not saying, that more than 8 per cent of the applications are bogus. However, no explanation was given of why the detailed factual account required of the parties, under pain of considerable sanctions if lies are told, was not seen as effective, or indeed why it was required if it was thought not to be effective; nor of why such enquiries would not be a proportionate basis for limiting article 12 rights in the interests of immigration control.[53]The judge hesitated to treat this material as demonstrating that the scheme was, in the case of marriages to settled persons, disproportionate because it was unnecessary to achieve the end sought. That was because of the substantial degree of deference that he thought should be accorded to the decisions of the executive in matters of broad social policy, citing the observations of Lord Nicholls in Wilson: see the first judgment at §105. However, had the judge taken the approach to the demands of article 12 that is suggested at §§ 32-33 above, it would have become clear that, on the evidence as it was before him, the Secretary of State’s case for the necessity of the scheme in relation to marriages to settled persons had not been made out.[54]A further difficulty about the Secretary of State’s evidence as to problem of detecting “sham” marriages turns on the Secretary of State’s view of what kinds of marriages count as sham or collusive under the article 12 jurisprudence that is summarised in §29 above. In careful submissions, Mr Drabble pointed out that the 2006 Regulations, and their predecessors, which exclude from protection “marriages of convenience” with EEA nationals, but without further definition of that concept, are intended to implement this country’s obligations under Directive 2004/38EC. That Directive, in its recital 38, included amongst the aims of the Directive to guard against “abuse of rights or fraud, notably marriages of convenience or other form of relationships contracted for the sole purpose of enjoying the right of free movement and residence”. Since EU legislation is informed by the jurisprudence of the ECHR, in the absence of other guidance the formulation in the recital may reasonably be taken to represent the Convention’s understanding of a marriage of convenience.[55]However, the evidence of Mr Robinson, set out in §16 above, suggests that the Secretary of State has a wider view than that of what count as sham marriages or marriages of convenience. It will be recalled that Mr Robinson said that the Secretary of State saw as falling in that category marriages where “the purpose” (not necessarily the sole purpose) was to circumvent immigration control; and, perhaps more strikingly, a marriage could be sham in that sense whether or not the parties intended to live with each other as man and wife. Two comments follow. First, it is difficult to see that interference with article 12 rights on grounds of immigration control could ever be justified in a case where the parties did indeed intend to live together as man and wife: see further, as to the objections to a scheme that catches marriages that are genuine, in the very sense of the parties intending to live together, §§ 29 (v)-(vi) and 44 above. Second, if the Secretary of State has a much larger target for the investigation of “sham” marriages than the Convention jurisprudence would seem to justify, then he can hardly be heard to complain that the detailed pursuit of that investigation would be unduly burdensome.[56]This point really only emerged in oral argument before us, and we therefore do not have the judge’s view on it. For my part, however, it would seem to be a further substantial ground for thinking that the Secretary of State has not established the necessity of the scheme to the pursuit of immigration control.[57]The same objections would seem to arise in the third case, of marriages to EEA nationals. Indeed, there the assumptions of Directive 2004/38 are directly engaged, and the apparent failure to act on them is a further difficulty in the Secretary of State’s path.

Conclusion on Case No C4/2006/1469

[58]In the light of the Convention jurisprudence, the Secretary of State can only interfere with the exercise of article 12 rights in cases that involve, or very likely involve, sham marriages entered into with the object of improving the immigration status of one of the parties. To be proportionate, a scheme to achieve that end must either properly investigate individual cases, or at least show that it has come close to isolating cases that very likely fall into the target category. It must also show that the marriages targeted do indeed make substantial inroads into the enforcement of immigration control. For the reasons given by the judge, and for the further reasons that I have set out above, the scheme in issue in this case does not pass that test. I would dismiss the Secretary of State’s appeal in this case.[59]It may better reflect the terms of this judgment if there is substituted for the judge’s third order, against which the Secretary of State appeals, a simple declaration that the scheme is unlawful as being inconsistent with article 12. I would leave it to the parties to agree on the exact terms of the relief.

The decision on Mr Baiai’s application: case C4/2006/1621

[60]In his third judgment, [2007] 1 WLR 735, the judge considered the specific decision of the Secretary of State to refuse a COA to Mr Baiai. The judge held that, despite his conclusions about the scheme in his first judgment, the Secretary of State’s refusal had been lawful and proportionate, because Mr Baiai was unlawfully in the United Kingdom, and not merely here under a short-term permission.[61]I can deal with Mr Baiai’s appeal quite shortly. There may well be good grounds for saying that when a person should not be in this country at all, even on a temporary basis, it would be reasonable and proportionate to prevent him from using the access to article 12 that that physical presence gives him in order to improve his immigration position. But that is not the basis on which the Secretary of State rested his refusal of Mr Baiai’s application. The only right that he claimed to interfere with Mr Baiai’s intended marriage was, and had to be, based on the scheme. The objection inherent in the scheme, that it inhibits marriages on grounds of immigration status rather than by a reliable consideration of the genuineness of the marriage, applies just as much in the case of an illegal entrant such as Mr Baiai as in the case of persons with very limited permission to be here, such as Mr Bigoku and Ms Agolli. The scheme being unlawful, the Secretary of State’s decision under it has to fall with it: however much, as I have said, there might be the possibility of dealing with cases such as that of Mr Baiai under differently formulated legislation.[62]I would therefore allow Mr Baiai’s appeal in Case C4/2006/1621.

Lord Justice Lloyd:

[63]I agree.

Lord Justice Waller:

[64]I also agree.

Cited in 5 later judgments