Case Preview: R (Bibi & Anr) v Secretary of State for the Home Department
28 Tuesday Jun 2011
How should the government discourage forced marriages? There is no doubt that the practice of forced marriage is a problem for government to tackle: a forced marriage will often entail kidnapping, rape and false imprisonment. But should the government use the Immigration Rules to address the problem?
As part of the Government’s policy to combat forced marriages, paragraph 277 of the Immigration Rules was amended to raise the minimum age for a person to be granted a visa for the purposes of settling in the United Kingdom as a spouse, and for sponsoring another for the purposes of obtaining such a visa, from 18 to 21. The two appellants in this case were refused visas on the basis of this amended rule. The government’s reasoning for basing its policy on age was twofold: first, that the targeted age-group was particularly vulnerable to forced marriage. Second, that there was no practical way of differentiating within that group between forced and voluntary marriages.
In this case, formerly known as Quila and Ors v Secretary of State for the Home Department, the Court of Appeal held that the amendment to the Immigration Rules was disproportionate. The amended rule pursued a proper objective, but its arbitrary and disruptive impact on the lives of a large number of innocent young people made it impossible to justify. It reached this conclusion on public law grounds and under Articles 8 and 12. The Convention jurisprudence in this area is not straightforward and the Court of Appeal was adjudicating at its boundaries. If the Supreme Court’s current restrictive approach to Convention rights prevails, it may reach a different conclusion on the scope of the Convention. It seems less likely to overturn the Court’s conclusions in relation to public law: the amended rule was plainly overbroad.
Importantly, Sedley LJ held that proportionality was now a free-standing ground of review and was not merely an aspect of irrationality. Pitchford LJ did not pass comment and Gross LJ did not believe this important question needed to be decided in the case. Whether the Supreme Court chooses to address the status of proportionality in public law will be of particular concern to public lawyers and the decision has the potential to redefine traditional public law principles.