In a landmark ruling, the UK Supreme Court of Justice has dismissed the Home Secretary’s appeal to increase the UK spouse visa age from 18 to 21. The ruling upholds an earlier judgment that found that the increase in age interferes with the right to family life guaranteed by the ECHR and the Human Rights Act.
In R (on the application of Aguilar Quila) v Secretary of State for the Home Department; R (on the application of Bibi) v Secretary of State for the Home Department: SC (Justices of the Supreme Court – Lords Phillips (president), Brown, Clarke, Wilson, Lady Hale): 12 October 2011, the court ruled that an amendment to the immigration rules introduced by Labour home secretary Jacqui Smith in 2008 was not lawful.
Referring to paragraph 277 of the Immigration Rules (HC 395) (the rules) ‘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 UK or (as the case may be) on the date on which the leave to remain or variation of leave would be granted.’
The proceedings concerned two appeals which had been joined as they both related to the same issue namely; judicial review proceedings had been brought where the change of the age requirement had prevented the claimant from entering the UK. Both claimants sought to bring applications for judicial review of paragraph 277 of the rules.
Both respondents were non-EEA nationals who sought leave to remain as the spouses of British citizens. It was accepted by all parties concerned that there was no question of forced marriage in either case. However, both parties were refused on the basis of the amended Rule 277.
Lord Wilson said that “the refusal to grant marriage visas condemned both sets of spouses to live separately for approximately three years” and that it was a “colossal interference to their family life”.
The judge held that the secretary of state had failed to establish that the amendment to paragraph 277 of the rules was balanced between the rights of the parties to unforced marriages and the interests of the community in preventing forced marriages. In all events, she had failed to establish that the interference with the claimants’ rights under article 8 of the convention had been justified.
The judge went on to say that the right to marriage was a fundamental right. It did not include the right to marry in any particular place, at least if it was possible to marry elsewhere. It was not a qualified right, and the state could only restrict it to a limited extent, and not in such a way as to impair its essence.
In conclusion it was held that such interference was a disproportionate and an unjustified interference with the right to respect for family life.
What you should do
The above decision signifies a positive change in upholding the non-nationals to choose where to marry or where to cohabit once married. However there are many other obstacles imposed by the UKBA when it comes to making a successful application, there are many procedural requirements which have to be met.
Our expert immigration legal team can provide you and your family with a bespoke immigration solution. We have a team of Immigration lawyers who can assist you with your application, tailor their approach to meet with your individual needs and devise a strategy to facilitate a successful outcome. We will advise you on the documentary evidence required to make a successful application in accordance with the requirements of the Immigration rules.
Our Immigration Experts are able to give specialist legal information and advice in this area of law. To contact one of our Solicitors or Barristers please click here or call 0845 8622 529.