Posted on December 23rd 2010
DQ (Chile) and SB & Anr v SSHD  EWCA Civ 1482 This was an appeal to the Court of Appeal arising from the judgment of Burnett J in Quila v Secretary of State for the Home Department  EWHC 3189. The case arose out of rule 277 of the Immigration Rules. Introduced on 27 November 2008 the rule prevented the granting of entry clearance/leave in circumstances where either the applicant or the sponsor would be aged under 21. There were limited exceptions to this requirement in the form of the Home Office policy for ‘clear exceptional and compassionate cases’, cases which would violate Article 8 ECHR (conceded in the first instance) and subsequently for members of the armed forces to whom the former age limit of 18 applied. Cases falling outside of these limited exceptions however were automatically refused. The Rule affected some 5000 or so young couples per year 96% of whom were believed to be in genuine marriages. The rationale for the introduction of the scheme was to prevent forced marriages from taking place. The facts The facts of the appellants in this case were that they were both non- EEA nationals who sought entry clearance/leave to remain as the spouse of a British citizen. It was accepted by all parties concerned that there was no question of forced marriage in both of the cases, however both parties were refused on the basis of rule 277 and were unable to bring themselves within any of the specified exceptions. The appellant JCWI represents - Diego Andres Aguilar Quila requested that the rule was waived, however the Secretary of State refused to do so on the grounds that this would damage the rigidity of the scheme - this was said to be a deliberate feature of the scheme. Accordingly he and his British wide left the UK and returned to Chile and then subsequently moved to Ireland. Combined effects - right to marry and to respect for private and family life The Court allowed this appeal on the grounds that rule 277 as it applied to British citizens was a disproportionate interference with fundamental common law and human rights. It did not strike the rule down but left it to the Secretary of State to either devise it in a more limited form or drop it altogether. Sedley LJ giving the lead judgement held:
“47. In my judgment rule 277 represents a direct interference with what the common law and Convention both value as a fundamental right. In the eyes of the common law it is not simply the right to marry and not simply the right to respect for family life but their combined effect which constitutes the material right: that is to say a right not merely to go through a ceremony of marriage but to make a reality of it by living together. For the state to make exile for one of the spouses the price of exercising the right to marry and embark on family life requires powerful justification – considerably more powerful, in my judgment, than existed in Abdulaziz. In Convention terms the two rights are discrete, but their practical relation to each other is in my view very much the same.”Whilst accepting that discouraging forced marriage was a legitimate objective, Sedley held that the blanket rule that subjected all young couples to a non-rebuttable presumption that their marriage was a forced one exceeded what was necessary and proportionate. In rejecting arguments by the Secretary of State that rigidity of the scheme was a virtue because there was no feasible way of enquiring into the voluntariness of the marriage Sedley LJ noted that such enquiries were already part and parcel of the structure of the scheme given that SSHD could not act in a way that could violate Convention rights, and that appeals based on Article 8 ECHR would necessitate such an enquiry in any event. This was further undermined by the exception made for members of the armed forces. Furthermore, Sedley LJ noted that the policy imperative was only ‘obliquely, partially and in large part speculatively related to the measure under scrutiny.’. The reasons for introducing it were said to be: "i. To help tackle the problem of forced marriage by allowing young people extra time to develop maturity and life skills which would help them to resist inappropriate family pressure to marry. ii. To provide an opportunity to complete education and training iii. To delay sponsorship and therefore time spent with a (sometimes abusive) spouse if the sponsor returns to the UK. iv. To allow a victim of forced marriage an opportunity to seek help and advice during the period when they cannot sponsor their spouse and extra time to make a decision about whether to sponsor. Sedley LJ observed
“ 59.… the first of these reasons assumes that no marriage has taken place. If so, the rule has no bearing on it. The second and third purposes may be palliative but are in no way preventative. The fourth does seek to address the situation of a victim of forced marriage. The last part of it, however, assumes the very free will which forced marriage overbears. It is only the first part of it which has a concrete bearing on the problem, but it bears only on cases where the sponsor is the victim – that is, where a female UK Citizen has been forced to marry a foreign national. There may well be good reason to suspect that this class of case – where entry to the UK can be 'sold' to a foreign national by forcing a woman with British nationality to marry him – is the major and most pernicious sub-group. This, in fact, was the primary group identified as in need of protection in the 2008 consultation paper Marriage Visas: the Way Forward (see §1.3). But it is only on this sub-group that the first part of reason iv. can have a bearing.Analysis The Court did not address the the rule in so far as it relates to couples where one party is settled instead of a British citizen. It confined itself to the position of the British sponsors in this case and it was left to the Secretary of State to consider the implications that flow from the judgment and the nature of the rule they subsequently put in place. Although this case does not directly address the position where the spouse is settled [see the arguments in para. 39-50 and the discussion of Abdulaziz] JCWI's view is that in an obviously genuine marriage, the ratio of the judgment is applicable to couples where the sponsor is also settled.Practical implications The Secretary of State’s application for permission to appeal to Supreme Court, and to stay relief granted to the appellants was refused though they may seek to renew those applications to the Supreme Court. In the meantime as at today’s date our advice is that those visa/extension applicants with a British or settled sponsor whose application was refused on the basis of rule 277 should seek legal advice with a view to making submissions in the light of this judgment. They should invite SSHD to reconsider her decision and grant leave to remain outside of the Rules in the light of this judgement. Those who are considering making an application for entry clearance or an extension which attracts a fee at this point in time may wish to keep in mind that this case may be overturned in the event that an appeal is pursued. We will update when we have further information about the Secretary of State’s intentions. However on the basis of this judgment there are clearly grounds for submitting an application and requesting that this is dealt with outside of the Rules both for those with British and settled sponsors in the light of this judgment. The legal team for Diego Andres Aguilar Quila is Richenda Buxton, Joint Council for the Welfare of Immigrants, Richard Drabble QC and Chris Jacobs, Landmark Chambers. JCWI briefed against these proposals when they were debated in Parliament- see our website for briefings.