Paving the Road to Hell

Only the cynical would doubt that the government had the best of intentions in raising the age of both parties to a marriage from 18 to 21 with the stated aim of tackling the acknowledged evil of forced marriage. Chris Mullin, a junior minister in the last Labour administration and a man with evident sincere concern for immigration issues, devoted a small but memorable section of his memoirs 'A view from the foothills' to his delight in the advancement of the measure as a rare example of the ability to do some small good whilst in power. There is real bathos then in the recent decision of the Court of Appeal to allow the joined appeals in the case of R oao Quila and Others v Secretary of State for the Home Department [2010] EWCA Civ 1482,1 on the basis that they amounted to an unlawful infringement of the Claimants' rights.

Where did it all go wrong?

Sedley LJ, with whom Pitchford LJ agreed 'for the reasons he has given', in a thorough survey of the law, serving to remind us all of how much we will miss him when he retires, found that the rule was not irrational in the traditional sense of having no bearing on its intended target and was not ultra vires. He did however find that the rule interfered 'sharply' with a fundamental right in a manner that made the question of its proportionality central in both common law and in respect of its impact on the Appellants' right to family life under article 8 of the ECHR. It was therefore clearly cogent that it was common ground that in these two instant cases there was no suggestion that the marriage was anything other than genuine, and that the sole reason for the refusal of leave was the age of the parties.2

From that point the game was up for the Secretary of State. Not only was the interference unjustified insofar as it affected the Appellants, but the Secretary of State's reasoning left a great deal to be desired, it was described at one point (para 62) as 'inadequate and muddled'. So many flaws were highlighted that a detailed treatment would cover a great deal of space, for present purposes it suffices to note that (amongst many other problems) (a) the Secretary of State's own argument was that the rule would not function if the decision maker was required to assess the genuineness of the marriage, but there was no answer to the point that appeals against refusals in the Tribunal would inevitably have to confront the...