The Court of Appeal has told the Home Office to disapply marriage rules for the majority of couples applying for a visa.
In November 2008, the Home Office amended the immigration rules to require that only couples over 21 could benefit from family reunion. Applications by under-21s to join spouses here, or applications by older spouses to join partners here who were under21, were to be refused. Prior to that date, couples had to be 18, and until 2003 spouses were free to join partners in the UK provided both parties were over 16. The justification for the rule change was said by the Home Office to be to prevent forced marriages.
The rule caused a great deal of hardship and anger in migrant communities. A group of organisations, including the Joint Council for the Welfare of Immigrants (JCWI), Advice on Individual Rights in Europe (the AIRE Centre), the Asian Community Action Group in Sheffield, Southall Black Sisters and the Henna Foundation, got together to launch a challenge to the new rules, on the ground that they took a sledgehammer approach to forced marriage which penalised large numbers of innocent couples. The test case they took involved two couples, Diego and Amber Aguilar and Shakira Bibi and Suhayl Mohammed, both of whom were under 21 when they married. Chilean Diego Aguilar met and fell in love with 17-year-old Amber Jeffery, a British citizen, while he was studying in the UK. They married, but his application to stay was refused. To remain together, Amber had to go with Diego to Chile, giving up her place on a degree course in modern languages to do so. Shakira and Suhayl were both 18when they married in Pakistan, but Shakira’s application to join her British husband was refused and the couple have lived apart since.
At the hearing in October 2010, the Home Office representative claimed that there might have been up to 8,000 forced marriages in 2008 and that up to a third of them involved a partner between the ages of 18 and20. But the Home Office’s own evidence showed that its Forced Marriage Unit considered only 4 per cent of marriages between 18-20-year-olds to be forced, meaning that 96 per cent were voluntary.
In an important ruling, the Court of Appeal held that raising the minimum age of entry to the UK for spouses did little to combat forced marriage, but directly and disproportionately interfered with the right of British citizens and their spouses to live together. ‘The rule subjects all young couples to an unspoken but irrebuttable presumption that their marriage is a forced one,’ said Lord Justice Sedley. ‘The arbitrary and disruptive impact of the rule on the lives of a large number of innocent young people makes it impossible to justify.’ The court was not prepared to quash the rule as completely irrational, but ruled that the Home Office could not insist on a minimum age of 21in cases of voluntary marriage. It was left to the secretary of state to work out how to apply the court’s judgment, but a blanket ban on the entry of under-21s is no longer an option.
View the legal judgement here