Ministers have reacted with dismay to a supreme court ruling that throws out a blanket ban on marriage visas for those under 21.
The immigration minister, Damian Green, said the decision on Wednesday was “another very disappointing judgment” that would put more young people at risk of being forced into marriage.
Supreme court judges ruled that a blanket Home Office visa ban on British citizens under 21 bringing spouses to the UK from abroad was unlawful, saying it had done more harm than good and had prevented 5,000 genuine couples a year, aged 18 to 21, from living together in Britain.
The judges said the ban, which was introduced to deter forced marriages, breached the right to family life of the couples involved – a right conferred by the controversial article eight of the European Convention on Human Rights, which was at the centre last week’s cabinet row over the Human Rights Act.
The judgment said that “the only conclusion” it could draw was that the blanket marriage visa ban for those under 21 had kept bona fide young couples apart or forced them live outside Britain. It added that the “very substantial number” of young couples affected “vastly exceeds” the number of forced marriages that may have been prevented.
“On any view, the measure was a sledgehammer but the secretary of state has not attempted to identify the size of the nut,” the most senior judges in England said.
However, Green said the ruling overturned an existing policy that had been judged to be consistent with the human rights convention in other European countries. “The judges themselves agreed increasing the marriage visa age has a legitimate aim. We believe this decision will put vulnerable people at risk of being forced into marriage,” he said.
The ruling, by a 4-1 majority, is a further major blow to the home secretary, Theresa May, and rejects her appeal against an earlier appeal court decision that the under-21 rule was “arbitrary and disruptive”.
The court decision is likely to reignite the human rights row after last week’s “catflap” clash during which May promised to rewrite the immigration rules to ensure that the controversial article eight was “no longer misinterpreted by the judges”.. It also follows David Cameron’s promise on Monday to crack down on forced marriages.
Only one of the five supreme court justices, Lord Brown, said he backed the home secretary’s appeal and warned his colleagues it was “unwise” for the courts to use article eight to “yet again frustrate government policy”.
The previous Labour government introduced the visa ban but the coalition has implemented it as a measure to tackle forced marriages. The supreme court says there is no conclusive evidence to show it has succeeded in deterring or preventing forced marriages.
The Joint Council for the Welfare of Immigrants (JWCI), which was party to the challenge, said about 5,000 couples a year who wanted to get married were suffering from the ban, which applies to spouses and partners coming from outside the EU to join those with the right to live in Britain.
The challenge was brought on behalf of two couples. The first, a British woman, Amber Jeffrey, and her Chilean husband, Diego Aguilar-Quila, met at school while his mother was studying at a British university. Although the Home Office accepted the relationship was genuine, Aguilar-Quila was denied a visa to stay in Britain under the rule and Jeffrey had to give up her place at Royal Holloway College in London to join her husband in Chile. The couple subsequently moved to Ireland.
The second , Shakira Bibi from Pakistan and Suhayl Mohammed, a British citizen, married on 30 October 2008. The Home Office accepted it was a traditional arranged marriage to which both had freely consented. But when Bibi applied in December 2008 for her husband to join her in the UK their application for a marriage visa was turned down because both were under 21.
Habib Rahman, chief executive of the JWCI, said: “This is a great day for the right to a family life in the UK. This was a law introduced on the hoof, which had no discernible effect on forced marriage, but infringed on the rights of UK citizens to live in the UK with their partners. We are delighted to see it consigned to the scrapheap of misguided legislation.”
In the majority ruling, Lord Wilson, backed by Lord Phillips, Lady Hale and Lord Clarke, came out firmly against the home secretary’s view of article eight’s right to a family life. “The secretary of state has failed to establish that interference with the rights of such couples under article eight is justified,” he said.
“The amended rule has a legitimate aim in deterring the practice of forced marriages and is rationally connected to that aim. But there was insufficient evidence before her that it would have any substantial deterrent effect on forced marriages, nor did she make any sufficient attempt to identify the number of forced marriages amongst the applications for marriage visas between the ages of 18 and 21.
“On any view, however, it is clear that the amended rule would, for a significant period, either keep apart a vastly greater number of young parties to unforced marriages, or force them to live outside the UK.”
The dissenting supreme court justice, Lord Brown, said: “Article eight is a difficult provision which has already led to some highly contentious, not to say debatable, decisions … In a sensitive context such as that of forced marriages, it would seem to me not merely impermissible but positively unwise for the courts yet again to frustrate government policy, except in the clearest of cases.
“To my mind this cannot possibly be regarded as such a case. I would allow these appeals.”
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