Baiai & Ors v Secretary of State for the Home Department & Anor

A state may impose conditions on the exercise of the right to marry to prevent sham marriages connected with immigration control. The conditions must nevertheless satisfy proportionality: the objective must justify limiting the right, the measures must be rationally connected with it, and the interference must go no further than necessary.

Substantial deference is generally due to Parliament and the executive in immigration policy. It does not extend to a scheme based on unexamined assumptions or evidence that fails to address materially different religious ceremonies. A regime that automatically restricts civil and non-Anglican religious marriages by reference chiefly to immigration status, without investigating the genuineness of the proposed marriage, may substantially interfere with article 12 and unjustifiably discriminate on grounds of religion and nationality under article 14.

Three linked judicial review claims challenged the certificate-of-approval regime introduced by Asylum and Immigration (Treatment of Claimants, etc) Act 2004, the Immigration (Procedure for Marriage) Regulations 2005 and associated guidance.

The regime required persons subject to immigration control who wished to marry under civil preliminaries to obtain the Secretary of State’s approval, normally on payment of £135. Anglican marriages conducted under ecclesiastical preliminaries were excluded. Some applications had been refused and others granted after proceedings began, but the claimants continued claims concerning the regime and delay.

The central questions were whether the regime was compatible with articles 12 and 14 of the ECHR, including whether its restrictions were proportionate and whether its distinction between Anglican and other marriages was justified.

1. Article 12. The right to marry is not absolute. The closing words of article 12 permit national laws governing its exercise to include substantive rules based on recognised public-interest considerations. Preventing sham marriages entered into to evade immigration control is a sufficiently important legislative objective to justify limiting the right. The state may therefore impose restrictions or conditions, provided that they satisfy proportionality.
2. The applicable proportionality inquiry was whether the legislative objective was sufficiently important to justify limiting a fundamental right, whether the measures were rationally connected to that objective, and whether the means used were no more than necessary: [2001] 2 AC 532, 547. Substantial deference was owed to Parliament and the executive because immigration and sham-marriage policy involved broad social and political questions. That deference did not excuse a failure to investigate a material issue before adopting the scheme.
3. The regime was not rationally connected with preventing sham marriages. It treated all non-Anglican religious marriages like registry-office marriages although there was evidence of sham registry-office marriages but no evidence that non-Anglican religious ceremonies had been used, or were likely to be used, for that purpose. It also treated immigration status, the period of leave remaining and limited compassionate circumstances as effectively decisive, without examining the genuineness of the individual proposed marriage or allowing relevant representations.
4. Those defects meant that the regime affected substantially more people than necessary and constituted a disproportionate and substantial interference with article 12 rights. The fee was also held, on the judge’s concluded view, not to be rationally connected with the legislative objective. The issue concerning the limited number of registry offices was not determined.
5. Article 14. The regime distinguished between Anglican marriages and all other marriages, and discriminated on grounds of religion and nationality, directly or, at minimum, indirectly. Religion and nationality were sensitive grounds requiring very weighty reasons for justification. No reasonable and objective justification existed: the evidence did not show that non-Anglican religious marriages were more likely to be sham marriages, and the regime was disproportionate for the same reasons as under article 12.
6. The article 12 and article 14 claims succeeded. The court left the EU issue and the precise relief and further orders for subsequent submissions.

First-instance judicial review decision. The judgment records no prior appellate decision in the same proceedings.