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Judgments - R (On The Application of Baiai and Others) V Secretary of State For The Home Department


SESSION 2007-08

[2008] UKHL 53

on appeal from: [2007]EWCA Civ 478




R (on the application of Baiai and others) (Respondents) v Secretary of State for the Home Department (Appellant) and one other action (formerly R (on the application of Trzcinska and others) (Respondents) v Secretary of State for the Home Department (Appellant) and one other action

Appellate Committee

Lord Bingham of Cornhill

Lord Rodger of Earlsferry

Baroness Hale of Richmond

Lord Brown of Eaton-under-Heywood

Lord Neuberger of Abbotsbury



Monica Carss-Frisk QC

Angus McCullough

Robert Wastell

(Instructed by Treasury Solicitors)

Respondents (Baiai & Trzcinska):

Rambert De Mello

Satvinder Singh Juss

Adrian Berry

(Instructed by Kamberley as London agents for David Tang & Co )

Respondents (Bigoku Agolli & Tilki):

Manjit Gill QC

James Collins

(Instructed by Sheikh & Co)

Interveners: (Joint Council for the Welfare of Immigrants and the AIRE Centre)

Richard Drabble QC

Eric Fripp

Charles Banner

(Instructed by Dawson Cornwell)

Hearing dates:

23, 24 and 25 JUNE 2008






R (on the application of Baiai and others) (Respondents) v Secretary of State for the Home Department (Appellant) and one other action (formerly R (on the application of Trzcinska and others) (Respondents) v Secretary of State for the Home Department (Appellant) and one other action

[2008] UKHL 53


My Lords,

1.  This appeal concerns the right to marry protected by article 12 of the European Convention on Human Rights, one of the articles to which domestic effect is given by the Human Rights Act 1998. It provides that “Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right". More specifically, the appeal concerns the control of that right by the Secretary of State under and pursuant to section 19 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004. The agreed issue is whether the scheme established by and under section 19 involves a disproportionate interference with (and therefore a breach of) the article 12 right to marry of any or all of the respondents. The Court of Appeal, affirming the first instance judge save on one point, held that it does. The Secretary of State challenges that conclusion.

2.  Mr Baiai and Ms Trzcinska met in this country in August 2004 and started a relationship in about October of that year. He is an Algerian national, now aged 37, and a Muslim. He entered the country illegally in February 2002 and has remained here unlawfully since then. He was given temporary admission by an immigration officer on 24 May 2005. Ms Trzcinska, now aged 28, is a Polish national who came to this country as a worker in July 2004 following Poland’s accession to the European Union. She is a Roman Catholic. As a national of the European Economic Area and a worker she has a right to reside in this country. Mr Baiai and Ms Trzcinska stated that they wished to marry before starting a family. On 31 January 2005 Mr Baiai applied to the Secretary of State for his written permission to marry in the United Kingdom pursuant to section 19(3)(b) of the 2004 Act. By letters of 15 February and 15 April that application was refused. On 8 March 2005 Mr Baiai and Ms Trzcinska together issued an application for judicial review of the refusal. Following the order of the Court of Appeal made on 23 May 2007 the Secretary of State issued a Certificate of Approval (CoA) giving Mr Baiai and Ms Trzcinska permission to marry, and they have since married.

3.  Mr Bigoku and Ms Agolli, aged 35 and 24 respectively, are both nationals of the Former Republic of Yugoslavia and are both Muslims. Both are of Albanian ethnicity, but his home was in Kosovo and hers in Serbia. He arrived in this country on 28 October 1998 and applied for asylum the next day. On 19 July 1999 he was granted Exceptional Leave to Remain for one year, under a concession then in force, without prejudice to his asylum claim, and this leave duly expired a year later. He was interviewed by the Home Office on 7 June 2001 and his asylum claim was refused 4½ years later. Ms Agolli’s date of arrival in this country is not precisely known, but she was granted Exceptional Leave to Remain on 31 January 2003, to expire on 31 January 2007. Mr Bigoku and Ms Agolli applied, separately, for the Secretary of State’s written permission to marry on 13 May 2005. There was some delay in considering their applications and on 2 September 2005 they issued a joint application for judicial review. On 15 September 2005 the Secretary of State issued to both respondents a Certificate of Approval, giving them written permission to marry, expiring on 15 December 2005. They married. In the light of this decision these respondents were invited to withdraw their application for judicial review, but they declined to do so.

4.  Ms Melek Tilki and Mr Mehmet Ince are both Turkish nationals and both Muslims, aged 20 and 38 respectively. They are cousins and had known each other in Turkey before they came to this country. She arrived on 8 November 2004 and applied for asylum. Her application was refused on 9 December 2004 but she was granted Limited Leave to Remain on a discretionary basis. This leave expired on 4 September 2005 and no further grant of leave has been made. She is therefore an overstayer. Mr Ince had arrived earlier, on 11 September 2001, and had been granted Indefinite Leave to Remain on 22 July 2002. Shortly after Ms Tilki’s arrival in this country, in November 2004, she and Mr Ince investigated the possibility of marriage. In early 2005 she became pregnant and in March 2005 her parents gave their consent to her marrying Mr Ince, such consent being required because she was aged 17. On 22 June 2005 Ms Tilki applied for the Secretary of State’s written permission to marry, also challenging the lawfulness of the requirement to seek such permission. This application was refused on 18 July 2005. On 19 September 2005, after expiry of her Limited Leave to Remain, Ms Tilki issued proceedings for judicial review to which Mr Ince was not a party. Three days later, on 22 September 2005, the Secretary of State issued a Certificate of Approval giving Ms Tilki permission (expiring on 29 December 2005) to marry Mr Ince and they were married. She was then invited to withdraw her claim for judicial review but she chose to pursue her challenge.

5.  Although enacted nearly 60 years ago, the Marriage Act 1949, amended from time to time since, remains the primary statute governing the solemnisation of marriages in England and (very largely) Wales. It draws a sharp distinction between marriages solemnised according to the rites of the Anglican Church in England or Wales following the reading of banns or the grant of an Archbishop’s licence or a common licence (“ecclesiastical preliminaries”), the subject of Part II of the Act, and marriages solemnised on the authority of a certificate of a superintendent registrar, the subject of Part III. The broad effect of the Act is that any marriage not solemnised according to the rites of the Church of England following ecclesiastical preliminaries must be, in effect, licensed by the certificate of a superintendent registrar even if, before or after, a religious ceremony has taken place. This appeal is solely concerned with marriages falling within Part III of the Act.

6.  The Immigration Rules, and the right to respect for family life protected by article 8 of the European Convention, confer a measure of protection on some persons having limited or no leave to enter or remain in this country who marry here. This gives rise to an acute and difficult administrative problem: that persons seeking leave to enter or remain in this country may marry here, not for the reasons which ordinarily and legitimately lead people to marry, but in order to strengthen their claims for leave to enter or remain. Such marriages have been variously described as “bogus” and “sham” and as “marriages of convenience". All are descriptions of marriages entered into for the purpose of securing an immigration advantage. It is difficult to improve on the definition (which the Secretary of State accepts as apposite) in article 1 of the EC Council Resolution 97/C382/01 of 4 December 1997 on measures to be adopted on the combating of marriages of convenience, according to which a marriage of convenience is

“a marriage concluded between a national of a Member State or a third-country national legally resident in a Member State and a third-country national, with the sole aim of circumventing the rules on entry and residence of third-country nationals and obtaining for the third-country national a residence permit or authority to reside in a Member State".

I shall refer to marriages of convenience in that sense.

7.  The Resolution just referred to reflected the concern among European states about marriages of convenience so defined. The recitals to the Resolution noted that marriages of convenience constituted a means of circumventing the rules on entry and residence of third-country nationals, described the objective of the Resolution as being not to introduce systematic checks on all marriages with third-country nationals but to provide for checks where there were well-founded suspicions that a marriage was or would be one of convenience and recognised the possibility that member states might check whether a marriage was one of convenience before it was performed. The Resolution listed factors which might provide grounds for believing that a marriage was one of convenience: for example, that matrimonial cohabitation was not maintained, that the spouses had never met before their marriage, that the spouses gave inconsistent particulars of their respective personal histories and circumstances, and that the spouses spoke no common language. The Resolution provided that where there were factors which supported suspicions for believing that a marriage was one of convenience, member states should issue a residence permit or authority to the third-country national on the basis of the marriage only after the competent national authorities had checked that the marriage was not one of convenience and that the other conditions relating to entry and residence had been fulfilled. Such checking might involve a separate interview with each of the spouses. Should the competent authorities find the marriage to be one of convenience, the residence permit or authority granted on the basis of the third-country national’s marriage should as a general rule be withdrawn, revoked or not renewed. But the third-country national should have an opportunity to contest or have reviewed, as provided by national law, before a court or competent administrative body, a decision to refuse, withdraw, revoke or not renew a residence permit or authority. Member states were to endeavour to bring their national legislation into line with the Resolution by 1 January 1999.

8.  The United Kingdom responded to this Resolution, in part, by enacting section 24 of the Immigration and Asylum Act 1999. This section imposed a duty on (among others) superintendent registrars to report to the Secretary of State any proposed marriage of which notice was given to them in which there were reasonable grounds for suspecting that the marriage would be a “sham marriage". This expression was defined in subsection (5) to mean

“a marriage (whether or not void) —

(a)  entered into between a person (“A”) who is neither a British citizen nor a national of an EEA State other than the United Kingdom and another person (whether or not such a citizen or such a national); and

(b)  entered into by A for the purpose of avoiding the effect of one or more provisions of United Kingdom immigration law or the immigration rules.”

Pursuant to their duty under this section, superintendent registrars reported their suspicions in a considerable number of cases. It was the number of such reports which prompted further action to counter the problem of marriages of convenience, as I prefer to call them.

9.  This was the problem addressed, not very explicitly, by section 19 of the 2004 Act. The section applies (subsection (1)) to any marriage which has two features. First, it is a marriage which is to be solemnised on the authority of a certificate issued by a superintendent registrar under Part III of the 1949 Act, thus excluding Anglican marriages following ecclesiastical preliminaries governed by Part II. Secondly, it applies to a marriage where one or other or both parties is or are subject to immigration control. As defined in subsection (4), a person is subject to immigration control if he or she is not an EEA national (as all the respondents save Ms Trzcinska are not) and he or she requires leave to enter or remain in the UK (whether or not such leave has been given) under the Immigration Act 1971, as do all the respondents save Ms Trzcinska. Section 19(2) imposes certain requirements concerning the notice to be given to the superintendent registrar under section 27 in Part III of the 1949 Act in the case of a marriage covered by section 19, but nothing turns on the details of these requirements in this appeal. Subsection (3) of section 19, however, lies at the heart of the appeal. It provides that the superintendent registrar shall not enter in the marriage notice book notice of a marriage covered by the section unless satisfied by the provision of specified evidence that any party subject to immigration control fulfils one or other of three conditions. The conditions are, first (subsection (3)(a)), that the party has an entry clearance granted expressly for the purpose of enabling him or her to marry in the UK. None of the respondents has such an entry clearance. The second condition (subsection (3)(b)) is that the person has the written permission of the Secretary of State to marry in the United Kingdom. Such permission, as already noted, was originally refused to each of the respondents (save Ms Trzcinska and Mr Ince) but later granted. The third condition (subsection (3)(c)) is that the party falls within a class specified for the purposes of paragraph (c) by regulations made by the Secretary of State. The only class so specified is persons settled in the UK, as defined in the regulations referred to in para 10 below, which refers to the definition in the Immigration Rules. None of the respondents is settled in the UK in that sense, Mr Ince not being a respondent. Thus the appeal concerns the requirement in section 19(3)(b) for persons such as the respondents (other than Ms Trzcinska and Mr Ince) to obtain the written permission of the Secretary of State to marry, and Ms Trezcinska could not of course have been able to marry here had permission not been given to Mr Baiai nor Mr Ince unless permission had been given to Ms Tilki

10.  Section 25 of the 2004 Act empowered the Secretary of State to make regulations requiring persons seeking permission to marry under section 19(3)(b) (or other subsections irrelevant for present purposes) to make an application and pay a fee. The regulations were to specify, in particular, the information to be contained in the application, the amount of the fee and the procedure for paying the fee, and further provision might be made for reducing or refunding the fee or exempting a class of persons from paying it. Pursuant to this and other powers the Secretary of State made the Immigration (Procedure for Marriage) Regulations 2005 (SI 2005/15). The fee payable on application to the Secretary of State for written permission to marry under section 19(3)(b) was then fixed at £135, although it has since 2 April 2007 been increased to £295.

11.  In February 2005 the Immigration Directorates issued instructions on authority to marry under what was misdescribed as the 2005 Act. It stated that under the Act persons subject to immigration control who wished to marry in the UK must meet an additional qualifying condition before they can give notice of the marriage: they must have an entry clearance or be settled in the UK or (relevantly to this appeal) “have a Home Office certificate of approval". Chapter 1, section 15, para 3, of the Instructions (“Criteria for Granting a Certificate of Approval”) makes provision for postal application and states:

“In order to qualify for a certificate of approval, a person must have valid leave to enter or remain in the UK as follows. He must have:

been granted leave to enter or remain in the UK totaling (sic) more than 6 months on this occasion; and have at least 3 months of this leave remaining at the time of making the application.”

The Instructions state that a certificate of approval will be refused if there is good reason to believe that there is a legal impediment to the marriage, as on grounds of age, consanguinity or an existing marriage. A certificate of approval would normally be refused to a person not qualified to be granted one, but a certificate could be granted on compassionate grounds, of which further details were given in Annex NN to the Regulations.

12.  Ms Carss-Frisk QC helpfully advanced the Secretary of State’s case in a series of propositions which it is convenient to consider in turn. She submitted, first, that the right to marry protected by article 12 is not an absolute right. She relied in particular on the closing phrase of article 12 (“according to the national laws governing the exercise of this right”), on the Strasbourg and domestic case law and on the analogy drawn in some of the cases between article 12 and article 8.

13.  If by “absolute” is meant that anyone within the jurisdiction is free to marry any other person irrespective of age, gender, consanguinity, affinity or any existing marriage, then plainly the right protected by article 12 is not absolute. But equally plainly, in my opinion, it is a strong right. It follows and gives teeth to article 16 of the Universal Declaration of Human Rights (1948) and anticipates article 23(2) of the International Covenant on Civil and Political Rights (1966). In contrast with articles 8, 9, 10 and 11 of the Convention, it contains no second paragraph permitting interferences with or limitations of the right in question which are prescribed by law and necessary in a democratic society for one or other of a number of specified purposes. The right is subject only to national laws governing its exercise.

14.  The Strasbourg case law reveals a restrictive approach towards national laws. Thus it has been accepted that national laws may lay down rules of substance based on generally recognised considerations of public interest, of which rules concerning capacity, consent, prohibited degrees of consanguinity and the prevention of bigamy are examples (Hamer v United Kingdom (1979) 24 DR 72, para 62; Draper v United Kingdom (1980) 24 DR 72, para 49; F v Switzerland (1987) 10 EHRR 411, para 32; Sanders v France (1996) 87 B-DR 160, 163; Klip and Krüger v Netherlands (1997) 91 A-DR 66, 71). But from early days the right to marry has been described as “fundamental", it has been made clear that the scope afforded to national law is not unlimited and it has been emphasised that national laws governing the exercise of the right to marry must never injure or impair the substance of the right and must not deprive a person or category of person of full legal capacity of the right to marry or substantially interfere with their exercise of the right (Hamer, above, paras 60, 62; Draper, above, paras 47-49; F v Switzerland, above, para 32; Sanders v France, above, 162-163; Klip and Krüger, above, 71; R and F v United Kingdom, Appn no 35748/05 unreported, 28 November 2006, p 14). In practice the Strasbourg authorities have been firm in upholding the right to marry, finding in favour of applicants denied the exercise of that right because they were serving prisoners (Hamer, above; Draper, above) or because of a mandatory delay imposed before entering into a fourth marriage (F v Switzerland, above), or because one applicant was the father-in-law of the other and they could only exercise their right if they obtained a private Act of Parliament (B v United Kingdom (2005) 42 EHRR 195).

15.  A number of the reported cases on article 12 turn on that part of the article which refers to the right to found a family. The facts giving rise to these decisions are again varied: prisoners complaining of the denial of conjugal visits to them in prison (X v United Kingdom (1975) 2 DR 105; ELH and PBH v United Kingdom (1997) 91 A-DR 61); denial to a husband and wife of the opportunity to enjoy sexual relations while they were both in prison (X and Y v Switzerland (1978)13 DR 241); denial to a husband of authority to oppose an abortion undergone by his wife (Boso v Italy Appn no 50490/99, 5 September 2002); denial of artificial insemination facilities to a serving prisoner (Dickson v United Kingdom (2006) 46 EHRR 419; R (Mellor) v Secretary of State for the Home Department [2001] EWCA 472, [2002] QB 13). The Secretary of State relied on these authorities in argument because, although the right to found a family was on occasion described as “absolute” (X v United Kingdom, above, 106) it was repeatedly said that where an interference with a right was justified under article 8(2) it would not found a good claim under article 12 (X and Y v Switzerland, above, 244; ELH and PBH v United Kingdom, above, 64; Boso, above, 6; Dickson, above, para 41; Mellor, above, paras 29, 39). Thus, it was argued, article 12 may permissibly be qualified on grounds such as those which may be relied on under article 8. I do not accept this analysis, for a number of reasons. First, article 12 confers a right, not a right to respect for specified areas of personal life. Secondly, as already noted, article 12 contains no equivalent to article 8(2). Thirdly, all the decisions mentioned in this paragraph save Mellor also reviewed and rejected claims under article 8, with which the right to found a family is very closely linked, if indeed there is not some overlap. Fourthly, all the applicants and the appellant in Mellor failed. The Strasbourg authorities have not in practice upheld the right to found a family with the same firmness they have shown in upholding the right to marry.

16.  The Strasbourg jurisprudence requires the right to marry to be treated as a strong right which may be regulated by national law both as to procedure and substance but may not be subjected to conditions which impair the essence of the right.

17.  The second proposition advanced for the Secretary of State was that conditions on the right to marry that served the interests of an effective immigration policy were justifiable, provided that such measures satisfied the requirement of proportionality. Neither Mr Gill QC and Mr de Mello for the respondents, nor Mr Drabble QC for the interveners (for whose submissions the committee is indebted), accepted the full breadth of this proposition. Reference was made to four authorities in particular.

18.  In A v United Kingdom (1982) 5 EHRR 296 a disabled UK citizen living on benefits complained of the denial of entry clearance to his Filippino fiancée whom he had never met but wished to marry here. The ground of refusal was that she would be a charge on public funds. The Commission observed that the right to marry did not in principle include the right to choose the geographical location of the marriage and held the refusal of entry to be justified. The case did not involve a genuine marriage between two persons already in the jurisdiction.

19.  In Application No 10914/84 v Netherlands (1985) 8 EHRR 308 the first applicant (a Moroccan) had come to the Netherlands and obtained a residence permit on the strength of a permanent relationship with a Dutch woman. When that permit expired he sought a new permit which was refused because his relationship had come to an end and he was unemployed. He challenged this refusal on the ground of a relationship with the second applicant, another Dutch woman, but this was refused because she was living on a state benefit and could not support him. The applicants took steps towards getting married, and the first applicant tried unsuccessfully to obtain an order prohibiting his expulsion. It was held that the Dutch authorities were not obliged to allow the first applicant to stay in the Netherlands in order to marry. In the event, the parties went to Morocco and married. The first applicant then obtained a residence permit to stay with his wife in the Netherlands. The applicants’ complaint under article 12 was held to be manifestly ill-founded, and the Commission noted that article 12 did not guarantee the right to marry in a particular country or under a particular legal system. This case, as I understand it, is authority for the proposition that the prospect of marriage need not disrupt the ordinary course of immigration control, but it does not appear from the report that the Dutch authorities did prevent the applicants marrying.