|Judgments - R (On The Application of Baiai and Others) V Secretary of State For The Home Department
20. The facts and the law as reported in Sanders v France, above, are said by the interveners to be incomplete and in part misleading, but the decision must be read in the light of the facts and the law as stated. The applicants, a Turkish man aged 50 and a French woman aged 24, living together in Istanbul, complained of difficulties they encountered at the French consulate general in Istanbul in obtaining a certificate of capacity to marry. To preclude marriages of convenience, French law provided for the issue of a certificate, to be granted on application to State Counsel (in Nantes, in the case of French citizens residing abroad). State Counsel could oppose or postpone a marriage. In the applicants case the marriage was postponed, but this order was then lifted. There was delay in the applicants receipt of the certificate, partly because the second applicant declined to collect it, but in the meantime they were married in Istanbul. The applicants complaint under article 12 was held to be manifestly ill-founded. The issue was held to concern substantive rules the purpose of which was to preclude marriages of convenience between French citizens and aliens, a limitation which was not contrary to article 12. The delay, although regrettable, did not impair the very essence of the right to marry. This decision is clear authority for the proposition that a national law may properly authorise a national authority to delay a proposed marriage between a citizen and a third-country national for a reasonable period to establish whether the marriage is one of convenience.
21. In Klip and Krüger, above, the applicants were a Dutch man and a German woman. They had had a relationship since 1987 and had jointly bought a house in 1995. In January 1996 the second applicant applied for a residence permit to stay with the first applicant, which was granted for 1 year, and very shortly thereafter they gave notice of their intention to marry. The first applicant informed the Aliens Department of the intended marriage and at its request provided further information required by law where one intended spouse was not a Dutch citizen. Notification of the intended marriage was accepted, but the applicants objected to seeking a further statement required by law and to seeking permission of the Aliens Department to marry. They invoked articles 8, 12 and 14 of the Convention. A dispute followed, which was resolved by the issue of the required statement and the parties marriage. The formalities which gave rise to the dispute were required by a Dutch Act which came into force in 1994 intended to prevent and suppress marriages of convenience. It sought to establish a systematic examination of all marriages involving aliens, and to that end required completion of a standard questionnaire. Only where the Aliens Department had a reasonable suspicion that the intended marriage was one of convenience were certain further steps required. The public prosecutor was competent to oppose a marriage as contrary to Dutch public order where the primary object of one or both of the future spouses was to obtain entry into the Netherlands. The applicants complaint to the Commission under article 12 was rejected as manifestly ill-founded. It was accepted that the law could prevent marriages of convenience between Dutch citizens and aliens for immigration purposes. The obligation to submit a statement was not objectionable. This case is in my opinion authority for the same proposition as Sanders.
22. The Secretary of States second proposition is in my opinion somewhat too broadly stated. A national authority may properly impose reasonable conditions on the right of a third-country national to marry in order to ascertain whether a proposed marriage is one of convenience and, if it is, to prevent it. This is because article 12 exists to protect the right to enter into a genuine marriage, not to grant a right to secure an adventitious advantage by going through a form of marriage for ulterior reasons.
23. The Secretary of States third proposition was that such permissible restrictions on the right to marry might affect marriages which were genuine and not only sham marriages. She relied on the authorities referred to above in relation to the second proposition. But they do not establish her proposition. They establish, consistently with the Resolution cited in para 7 above, that a member state may take steps to prevent marriages of convenience. They further establish, again consistently with the Resolution, that where a third-country national proposes to marry within the jurisdiction the member state may properly check whether the proposed marriage is one of convenience or not and seek information necessary for that purpose. The authorities give no support to the proposition that a significant restriction may be placed on all such marriages, or on a sub-class of such marriages, irrespective of whether they are marriages of convenience or genuine marriages and with no procedure to ascertain whether they are the one or the other.
24. The Secretary of States fourth proposition was that the assessment of whether the section 19 scheme satisfies the requirement of proportionality essentially involves consideration of whether it strikes a fair balance between the protection of individual rights and the general interests of the community. It has of course been held that the search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individuals fundamental rights is inherent in the whole of the Convention: Sporrong and Lönnroth v Sweden (1982) 5 EHRR 35, para 69. But I do not think the problem in the present case is aptly analysed in terms of striking a fair balance. Article 12 gives those within the jurisdiction a right to marry. That right is subject to national laws governing its exercise, but the section 19 scheme, taken as a whole, does not fall within the category of national regulatory laws which the closing phrase of article 12 permits, as is clear from the decided cases cited above. Thus the section 19 scheme, insofar as it restricts the right to marry, can be justified only to the extent that it operates to prevent marriages of convenience which, because they are not genuine marriages, do not earn the protection of the right. If the section 19 scheme restricts the right to marry to a greater extent than that, it is disproportionate.
25. The Secretary of States fifth proposition was that the section 19 scheme involves an area of broad social policy where the judgment of the legislature and executive should be given considerable weight. This proposition is, with respect, too sweeping. There are some features of the section 19 scheme which depend on a political judgment which the court is ill-qualified to assess: such as, for instance, the prevalence of marriages of convenience in this country, the incidence of such marriages in Anglican churches following ecclesiastical preliminaries, the desirability of taking action and the relative merits of seeking to prevent such marriages and seeking to deprive the parties to such marriages after the event of any immigration advantage they might have obtained. But the court cannot abdicate its function of deciding whether as a matter of law the section 19 scheme, as promulgated and operated, violated the respondents right to marry guaranteed by article 12. The answer to that question does not turn on considerations of broad social policy but on an accurate analysis of the scheme and the law.
26. The Secretary of States sixth proposition was that the section 19 scheme struck the requisite fair balance. The courts below did not accept this. Silber J, in the first of three judgments in these proceedings ( EWHC 823 (Admin),  1 WLR 693), rejected the argument for reasons which he elaborated in paras 46-108 of his judgment. He concluded that the section 19 regime was not proportionate and constituted a substantial interference with article 12 rights. He also held (paras 109-150) that the scheme was discriminatory and so violated article 14 of the Convention in conjunction with article 12, a conclusion which the Secretary of State accepted and did not seek to challenge on appeal.
27. For reasons given by Buxton LJ the Court of Appeal agreed with the judge that the section 19 scheme was disproportionate and violated article 12 (Waller, Buxton and Lloyd LJJ:  EWCA Civ 478,  QB 143). But it disagreed with a conclusion reached by the judge in a third judgment relating to Mr Baiai ( EWHC 1454 (Admin),  1 WLR 735), in which he had upheld the refusal of a certificate of approval to him on the ground that he was an illegal entrant. The Court of Appeal held (para 61) that the immigration status of Mr Baiai was irrelevant to the genuineness of his proposed marriage, which alone could properly determine whether he should be free to exercise his right to marry.
28. I very largely agree with the comprehensive reasons given by the judge in his first judgment and by the Court of Appeal, and in the light of conclusions already expressed can summarise my own reasons relatively briefly.
29. Apart from its discriminatory features, which the Secretary of State has said she will remove, I do not think section 19, read alone, is legally objectionable. It is open to a member state, consistently with article 12, to seek to prevent marriages of convenience. There is nothing in the text of section 19 which authorises or requires the withholding of permission to marry in the case of any marriage which is not a marriage of convenience. Indeed, the section makes no reference to marriages of convenience or sham marriages and gives no hint of the grounds on which permission may be granted or withheld. Section 19 could be operated, consistently with its terms and with article 12, in a manner which required persons subject to immigration control to give notice of a proposed marriage, enabled an appropriate authority to investigate whether the proposed marriage would be one of convenience and provided for the withholding of permission only in cases where it appeared that the proposed marriage would be one of convenience.
30. Subject to one qualification, the 2005 Regulations are similarly, in my opinion, unobjectionable. They provide in some detail in Schedule 2 for the information to be given by an applicant for permission to marry, and considerable detail (more than is required in the Schedule) is clearly necessary if enquiry is to be made whether a proposed marriage will be one of convenience. My qualification relates to the prescribed fee. It is plain that a fee fixed at a level which a needy applicant cannot afford may impair the essence of the right to marry which is in issue. A fee of £295 (£590 for a couple both subject to immigration control) could be expected to have that effect.
31. The Immigration Directorates Instructions, promulgated (it is understood) without express parliamentary sanction, provide for the denial of permission to marry (save on compassionate grounds, relatively rarely allowed in practice) to all those who are in the country without leave, or whose grant of leave to enter or remain in the UK on the occasion in question did not total more than 6 months, or who did not have at least 3 months remaining at the time of making the application for permission. The vice of the scheme is that none of these conditions, although of course relevant to immigration status, has any relevance to the genuineness of a proposed marriage, which is the only relevant criterion for deciding whether permission should be given to an applicant who is qualified under national law to enter into a valid marriage. It may be that persons falling within the categories specified in the Instructions are more likely to enter into a marriage of convenience than others, and that may be a very material consideration when the genuineness of a proposed marriage is investigated. But the section 19 scheme does not provide for or envisage any investigation at all, because (as has been explained in the evidence) such investigation is too expensive and administratively burdensome. Thus, subject to the discretionary compassionate exception, the scheme imposes a blanket prohibition on exercise of the right to marry by all in the specified categories, irrespective of whether their proposed marriages are marriages of convenience or whether they are not. This is a disproportionate interference with exercise of the right to marry.
32. For reasons given in para 29 above I would set aside the declaration of incompatibility made in the courts below (save as to discrimination). Section 19(3)(b) of the 2004 Act should be read as meaning has the written permission of the Secretary of State to marry in the United Kingdom, such permission not to be withheld in the case of a qualified applicant seeking to enter into a marriage which is not one of convenience and the application for, and grant of, such permission not to be subject to conditions which unreasonably inhibit exercise of the applicants right under article 12 of the European Convention". Subject to that correction I would dismiss the appeal. I would invite the parties to make written submissions on costs within 14 days.
LORD RODGER OF EARLSFERRY
33. I have had the privilege of considering the speeches of my noble and learned friends, Lord Bingham of Cornhill and Baroness Hale of Richmond, in draft. I agree with them and, for the reasons they give, I too would set aside the declaration of incompatibility (save as to the discrimination between civil and Anglican marriages) and dismiss the appeal, subject to the correction which Lord Bingham proposes.
BARONESS HALE OF RICHMOND
34. A sham marriage is still a valid marriage in English law. The fact is that in the English law of marriage there is no room for mental reservations or private arrangements regarding the parties personal relationships once it is established that the parties are free to marry one another, have consented to the achievement of the married state and observed the necessary formalities (Vervaeke v Smith  1AC 145, 152 per Lord Hailsham of St Marylebone LC). This has long been recognised as a rule of public policy. The ecclesiastical courts from whom our marriage law was derived did not want parties to an apparently valid marriage claiming that it was void because of some private reluctance to accept all of the obligations it entailed. How would one single out which obligations were essential and which not? There are many happily married couples who do not live together and many more who do not have children together. Nor are all so-called sham marriages entered into for a nefarious purpose"; as Lord Simon of Glaisdale has pointed out, Auden married the daughter of the great German novelist, Thomas Mann, in order to facilitate her escape from persecution in Nazi Germany (Vervaeke v Smith, at p 164; for another example of an altruistic sham marriage see Silver v Silver  1 WLR 728).
35. This means that the authorities are not free simply to disregard those marriages which they believe have been entered into purely in order to gain some perceived immigration advantage. No doubt such marriages do take place. No doubt also they are difficult to detect, not least because of the difficulty of unpicking the variety of reasons why two people might choose to marry one another. There are many perfectly genuine marriages which may bring some immigration advantage to one or both of the parties depending on where for the time being they wish to make their home. That does not make them sham marriages.
36. It is not disputed that the Government would be free to deny any immigration advantage to a party to a marriage which had been entered into solely for the purpose of obtaining that advantage. (Indeed, the respondents argue that that is already the case, as the claimed advantages apply only to real relationships.) But the scheme in issue here does something very different. The legislation enables the Government to prohibit in advance a great many marriages irrespective of whether or not they are genuine, irrespective of whether or not there is any immigration advantage to be obtained thereby, and without any right of appeal other than judicial review. This strikes at the very heart of the right to marry which is guaranteed to everyone of full age by article 12 of the European Convention on Human Rights.
37. Section 19 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 applies to all marriages which are to be solemnised on the authority of a superintendent registrars certificate under the Marriage Act 1949 where a party is subject to immigration control (s 19(1)). It does not apply to marriages conducted according to the rites of the Church of England on the authority of ecclesiastical preliminaries. This is discriminatory. It is also irrational as the Church of England believes itself (with some Parliamentary encouragement, for example in sections 57 and 58 of the Matrimonial Causes Act 1857) required to marry for the first time anyone who lives in the parish regardless of faith or the lack of it. Silber J made a declaration of incompatibility which we were told was designed to cover this aspect of the scheme (although directed at section 19(3) rather than section 19(1), which is the source of the discrimination) and the Government has accepted that this needs to be put right if the scheme survives.
38. But there are many more objections to the scheme than that. It covers anyone who is subject to immigration control, that is, anyone who is not an EEA national and requires leave to enter or remain in the United Kingdom (s. 19(4)). This covers all non-nationals unless they have already acquired the right of abode". All of these people are required to give notice to the registrar in specified registration districts, irrespective of where they live or intend to get married; and both parties to the intended marriage must attend in person to deliver their notice (s. 19(2)). This is all irrespective of how long they have been living here, how close their relationship and how small or non-existent the immigration advantage there might be.
39. When they get to the registrar, there are only two categories of people who need go no further. The first is a person who has been given entry clearance expressly for the purpose of enabling him to marry in the United Kingdom (s 19(3)(a)). The second is a person who falls within a class specified in regulations (s 19(3)(c)). Regulation 6 of the Immigration (Procedure for Marriage) Regulations 2005 (SI 2005/15) specifies a person who is settled in the United Kingdom within the meaning of paragraph 6 of the Immigration Rules. This basically means someone who is ordinarily resident here, not in breach of the immigration laws, and without any restriction on the period for which he may remain. A very large number of people who have been here lawfully for a long time will still not be settled here in this sense.
40. Everyone subject to immigration control who does not fall within those two exceptions cannot marry without the written permission of the Secretary of State to marry in the United Kingdom (s. 19(3)(b)). Application must be made in writing accompanied by the fee prescribed in the 2005 Regulations, which is now £295. If both parties require permission, therefore, they must pay £590 to apply for it. There is no power in the regulations to waive or reduce the fee no matter how meritorious the case. This is on top of the much more modest fees for the actual marriage, of £30 for each notice to marry, £40 for the ceremony, and £3.50 for the marriage certificate, making a total of £103.50. It must be a positive disincentive to couples whose desire to marry is deep and sincere and has nothing to do with their immigration status or where they intend to live once married.
41. None of these applicants will be able to find out from the Act or the Regulations how good their chances are of getting permission. On the face of it, the Government can adopt whatever policy it chooses without even laying it before Parliament for scrutiny. The current policy is contained in the published Immigration Directorates Instructions", chapter 1, section 15. This does not depend upon any reasonable assessment, either of the immigration advantage which the marriage might bring, or of the genuineness of the relationship. It depends upon a rule of thumb: permission will be granted if each person needing it has been granted leave to enter or remain in the UK for more than six months (calculated from when his present stay in the UK first began) and has at least three months of this remaining when he makes the application. Even within this category, permission will be refused if there is good reason to believe that either of the parties lacks capacity to marry in English law. Outside this category, permission will be refused unless there are exceptionally compassionate features making it unreasonable to expect them to travel, either to marry abroad or to apply for entry clearance from abroad. The examples given are pregnancy or some other condition making the person unfit to travel abroad. They do not include features suggesting that the marriage is genuine, because that is not the point.
42. This policy automatically excludes all asylum seekers because they do not have leave to enter. The policy states that they should not normally be permitted to marry until after their claims have been determined. But if an initial decision on an application or an appeal has been outstanding for 18 months (and we understand that time starts running afresh once an appeal has been lodged), or if they cannot be expected to travel abroad for compelling compassionate reasons, the permission may be granted. It is, of course, extremely unlikely that any genuine asylum seeker will be in a position to travel back to the country from which he has fled to escape a well-founded fear of persecution, nor would it be consistent with this countrys obligations under the Refugee Convention to compel him to do so.
43. It is an indication of how over-inclusive the statutory scheme is that the great majority of applications for permission are granted. From 1 February 2005, when section 19 came into force, until 10 April 2006, when Silber J handed down his first judgment, 14,787 applications for permission to marry or enter a civil partnership were dealt with. 12,754 were granted, only 41 of these on exceptional or compassionate grounds, the rest because they met the leave criteria. 1,805 were refused. 228 were withdrawn or discontinued. We are told that this was quite deliberate. The Government simply decided to subject a large number of proposed marriages to the deterrent effect of scrutiny and to prohibit all those in the class which they thought most likely to contain the suspect unions. Making a serious attempt to distinguish between the sham and the genuine was considered too difficult and too expensive.
44. My Lords, this scheme is an arbitrary and unjust interference with the right to marry, which is recognised internationally in article 16.1 of the Universal Declaration of Human Rights and article 23.2 of the International Covenant on Civil and Political Rights and regionally in article 12 of the European Convention on Human Rights. Article 16.1 was specifically aimed against bans on mixed marriages, between people of different races or religions or nationalities, such as had existed during the Nazi regime in Germany and continued to exist in some States of the United States until the decision of the Supreme Court in Loving et ux. v Virginia 388 US 1 (1967). As Chief Justice Warren then said Marriage is one of the basic civil rights of man', fundamental to our very existence and survival". Even in South Africa, where marriage is not constitutionally protected because of fears that this might entrench a particular model of marriage within a multi-cultural society, the provisions of the constitutional text would clearly prohibit any arbitrary state interference with the right to marry or to establish and raise a family. The text enshrines the values of human dignity, equality and freedom (see Minister of Home Affairs v Fourie, Case 60/04, Constitutional Court of South Africa, para 47, per Sachs J). Denying to members of minority groups the right to establish formal, legal relationships with the partners of their choice is one way of setting them apart from society, denying that they are free and equal in dignity and rights".
45. Even in these days, when many in British society believe that there is little social difference between marrying and living together, marriage still has deep significance for many people, quite apart from the legal recognition, status, rights and obligations which it brings. Marriage law . . . goes well beyond its earlier purpose in the common law of legitimising sexual relations and securing succession of legitimate heirs to family property. And it is much more than a piece of paper. (Sachs J, para 70). It brings legal, social and psychological benefits to the couple when they marry, while they are married and when it ends. Denying those benefits to a couple whose relationship is genuine is neither a rational nor a proportionate response to the legitimate aims of a firm and fair immigration policy.
46. I say that because it has been suggested that article 12 should be read as a qualified right, interference with which may be justified in the same way that interference with the right to respect for family life may be justified under article 8(2). As my noble and learned friend Lord Bingham of Cornhill has explained, although that may be the case where the right to found a family under article 12 overlaps with the right to respect for family life under article 8, there is nothing in the Strasbourg jurisprudence to suggest that it applies to the basic right to marry. The national laws governing the exercise of this right", referred to in article 12, are principally those governing its formalities. As the joint working party of the Law Commission and the Registrar General stated, in the Annex to the Law Commissions Report on Solemnisation of Marriage in England and Wales (1973, Law Com No 53, para 4) the purpose of a sound marriage law is to ensure that marriages are solemnised only in respect of those who are free to marry and have freely agreed to do so and that the status of those who marry shall be established with certainty so that doubts do not arise, either in the minds of the parties or in the community, about who is married and who is not". Article 12 does also envisage national laws governing the capacity to marry, but these must obviously be non-discriminatory and consistent with the fundamental principles of dignity, equality and freedom which underlie the whole Convention. They might include preventing sham marriages which are entered into solely for some purpose which has nothing to do with the relationship between the parties. But for all the reasons already explained, this scheme is not rationally aimed at that target.