Couple get payout after law violated their right to wed
Published 15/12/2010 | 02:41
A UK immigration law designed to prevent sham marriages has been outlawed as a breach of human rights after a Londonderry couple took the Government to the European Court of Human Rights.
Judges in Strasbourg ruled that the Government's Certificate of Approval Scheme violated the right to marry and the right to freedom of religion, enshrined in the Human Rights Convention.
The case involved a practising Catholic couple — Nigerian national Osita Chris Iwu and his wife Sinead O'Donoghue, who has dual British and Irish nationality.
They were described in court as “clearly in a long-standing and permanent relationship”.
The couple met in 2004 in Northern Ireland and began living together in 2005.
The following year they decided to marry, but they came up against the Home Office approval scheme which assesses residency qualifications of foreign nationals.
However, the scheme does not apply to such weddings involving Church of England marriage rites — something Mr Iwu as a Catholic would not contemplate.
The couple finally did marry, in October 2008, after Home Office rule changes and the help of friends who offered to pay the certificate application fee of £295, which they could not afford.
Under the approval scheme in operation when the couple first applied, only foreign nationals with permission to stay in the UK for more than six months and with more than three months of the period remaining, could qualify.
That did not include Mr Iwu, but a 2006 House of Lords ruling said the scheme “substantially interfered” with marriage rights guaranteed by the Human Rights Convention.
The Home Office amended the rules twice, before extending the qualifying rules to marriage hopefuls awaiting the result of an application for leave to remain in the UK.
Mr Iwu qualified but he could not afford the £295 fee and his request for exemption because he was not entitled to work was rejected.
After the couple married Mr Iwu was last year granted discretionary leave to remain, which runs until November 2011.
After the unanimous ruling, judges said changes to the system made earlier this year, allowing refunds to needy applicants, still breached human rights as “the very requirement to pay a fee acted as a powerful disincentive to marriage”.
The judges also questioned the fact that the rules do not apply to those seeking a Church of England wedding,
The court ordered the Government to pay the couple £7,200 in damages, £13,600 for costs — and £295 to cover the certificate price they had to borrow from friends.