Baiai & Anor, R (on the application of) v Secretary of State for Home Department

A person unlawfully present in the United Kingdom may be refused permission to marry where the refusal is rationally connected and proportionate to effective immigration control, including preventing queue-jumping and sham marriages. Article 12 does not guarantee marriage in a particular country. The applicant’s unlawful status is a relevant and potentially decisive factor in the proportionality assessment. Temporary admission does not confer the rights of a person with leave to enter and does not remove the person’s status as an illegal immigrant. Differences between registry-office marriages and Anglican ceremonies may provide weighty justification for different treatment under article 14.

The first claimant, an Algerian national who had entered the United Kingdom unlawfully, sought judicial review of refusals by the Secretary of State to issue a Certificate of Approval permitting him to marry the second claimant, a Polish national exercising treaty rights. The refusals were made under the scheme introduced by section 19 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004.

Earlier judgments had found aspects of the scheme incompatible with articles 12 and 14 of the ECHR in relation to persons lawfully present in the United Kingdom. This judgment addressed whether that reasoning applied to an unlawful entrant, and whether the later grant of temporary admission altered his position.

1. Article 12. The Secretary of State was entitled to treat the claimant’s unlawful presence as highly relevant. Marriage to an EEA national could confer substantial residence advantages and create an incentive for sham marriage or for avoiding the entry-clearance system. Refusing a Certificate of Approval was therefore rationally connected to the objectives of effective immigration control and preventing queue-jumping (paras 30–48).
2. Article 12 does not confer a right to marry in a country of the person’s choice. Requiring an unlawful entrant to leave the United Kingdom, marry abroad and apply for entry clearance was proportionate in the absence of compassionate circumstances. Substantial deference was appropriate because the issue concerned broad social policy and immigration control (paras 41–54).
3. Article 14. The claim failed under both the traditional comparator approach and the relevant-difference approach. There was a significant difference between a person seeking a registry-office marriage, where there was substantial evidence of sham marriages, and a person marrying under Anglican rites. The distinction was justified by immigration-control objectives. The claimant’s unlawful status also justified different treatment from persons lawfully present for sufficient periods to obtain a Certificate of Approval (paras 55–61).
4. Temporary admission. Temporary admission did not confer leave to enter, did not convert the claimant into a lawful immigrant, and did not alter his position for the purposes of the right to marry. The claimant remained an illegal immigrant under section 33(1) of the Immigration Act 1971 (paras 62–70).
5. The declarations of incompatibility made in the earlier judgment did not require the Secretary of State to issue a Certificate of Approval. A declaration under section 4(6) of the Human Rights Act 1998 does not affect the continuing operation of the legislation and the earlier judgment had not determined the position of unlawful entrants (paras 16–22).
6. The refusals did not infringe the claimant’s Convention rights. The claim was consequently unsuccessful, and the conclusion supplied an additional reason for refusing damages in the second judgment (para 77).

First instance judicial review decision. The judgment records earlier related judgments concerning the same litigation, including [2006] EWHC 823 (QB) [Admin] and [2006] EWHC 1035 (Admin), but this judgment determined the further issue concerning an unlawful entrant’s entitlement to a Certificate of Approval.