Case Comment: R (Bibi & Anor) v Secretary of State for the Home Department  UKSC 45
18 Tuesday Oct 2011
In 2008 the government adopted a new policy to combat forced marriages. It amended paragraph 277 of the Immigration Rules to ban the entry for settlement of foreign spouses or civil partners unless both parties were aged 21 or over. The government claimed that the amended rule helped stop young British women from being pressurised into sponsoring a fiancée or spouse seeking admission to the UK.
Not since R (Baiai) v Secretary of State for the Home Department  UKHL 53 (where foreign nationals were required to obtain the Secretary of State’s permission to get married) has there been such an obvious case of a disproportionate immigration measure. The Home Secretary had plainly failed to satisfy even the bare minimum evidential requirements to show that the measure was proportionate. She was not able to provide any evidence about how raising the age limit deterred forced marriage, or the likely number of forced marriages amongst those aged between 18 and 21 applying for a settlement visa.
As Lord Wilson said, ‘On any view it is a sledge-hammer but [the Home Secretary] has not attempted to identify the size of the nut.’ It was unsurprising that a majority of Supreme Court followed the Court of Appeal’s lead and quashed the rule (as has become a common feature in Article 8 judgments, Lord Brown dissented).
Perhaps the most interesting aspect of the decision concerns the approach taken to the seminal case of Abdulaziz v UK (1985) 7 EHRR 471 in which the European Court of Human Rights held that Article 8 was not engaged by the refusal of permission for the husbands of women lawfully settled in the UK to join them. The ECtHR held that Article 8 did not impose a general obligation on the state to respect the choice by married couples of their matrimonial home. The case is frequently relied on in the UK courts (see for example ZH (Tanzania)  UKSC 4, ). Abdulaziz would appear to rule out Article 8 in this case, but Lord Wilson distinguished it on various grounds, notably because it was ‘old’ and inconsistent with more recent Strasbourg decisions. Lady Hale adopted a different approach, noting that the ECtHR had traditionally drawn a distinction between the positive (allowing family reunion) and negative (not expelling a family member) aspects of Article 8. In her view that distinction – conceptually neat but difficult to justify in practice – was now obsolete.
In my case preview, I suggested that new public law ground might be broken if the Supreme Court took up the proportionality gauntlet thrown down by Lord Justice Laws in the Court of Appeal. He suggested that proportionality was now a free-standing ground of review in public law and setting public lawyers’ pulses racing. But the Supreme Court did not pursue the argument and so it remains unresolved.
The government has just concluded its Family Migration Consultation into new immigration measures to tackle forced and sham marriages (see here). It stated optimistically that it intended to maintain the minimum age of 21 for marriage visa applicants and sponsors ‘subject to the Supreme Court’s judgment’. It will now need to rethink its proposals.