Court upholds foreign spouse ruling
Published 12/10/2011 | 10:12
Banning foreign spouses aged between 18 and 21 from entering the UK is not a lawful way of dealing with the problem of forced marriages, the Supreme Court has ruled.
By a four to one majority, the highest court in the land rejected an appeal by Home Secretary Theresa May against a Court of Appeal decision which outlawed the ban as "arbitrary and disruptive".
The ruling upholding the appeal judges is a victory for two couples - Diego and Amber Aguilar, and Shakira Bibi and Suhyal Mohammed - who had fallen victim to changes to the immigration rules that prevented non-European under 21s from obtaining visas to join their British partners in the UK.
Four Supreme Court justices - Lord Phillips, Lady Hale, Lord Clarke and Lord Wilson - have agreed the ban could not stand as it infringed the right of the couples to family and private life, as protected by Article 8 of the European Convention on Human Rights.
The fifth justice, Lord Brown, disagreed and said he would have allowed the Home Secretary's appeal. He said it was "unwise" for the courts "yet again to frustrate Government policy" through the use of Article 8.
But Lord Wilson robustly upheld the appeal court ruling."The Secretary of State has failed to establish that interference with the rights of such couples under Article 8 is justified," he said.
The sole question was whether the restriction was "necessary in a democratic society", and whether it was "a proportionate response to a pressing social need". Lady Hale said: "As Lord Wilson has shown, there are many reasons to conclude that it was not.
"First and foremost, although nobody knows the figures, it is clear that the rule will interfere with many more entirely voluntary marriages than it will prevent, deter or delay forced marriages. The scale and severity of the impact upon these unforced marriages has scarcely been considered."
Secondly, it was also entirely unclear whether the rule did prevent or deter forced marriages. Consequently, she said, if the rule was not effective in preventing a forced marriage, it might do a great deal more harm than good.
"A young woman may be sent abroad and forced to marry against her will and kept there until she can sponsor her husband to come here," said Lady Hale. "During this time she may be raped many times, bear children she does not want to have, and be deprived of the education and life which she would otherwise have had here."