Secretary of State for the Home Department v Baiai & Ors

Article 12 permits proportionate measures directed at preventing marriages of convenience used to obtain immigration advantages. It does not permit a scheme which broadly inhibits marriage by reference only to immigration status and without a reliable means of identifying the marriages properly targeted.

A certificate-of-approval regime must investigate individual cases or closely isolate cases very likely to be sham. A requirement to leave the United Kingdom and seek entry clearance may impose a serious practical restraint on the right to marry, notwithstanding that article 12 gives no right to marry in a particular country. The scheme was therefore unlawful under article 12 of the European Convention on Human Rights.

The Secretary of State appealed from Silber J’s first judgment, [2007] 1 WLR 693, which held that the certificate-of-approval scheme for persons subject to immigration control was incompatible with articles 12 and 14 of the European Convention on Human Rights. The Secretary of State abandoned the challenge to the article 14 declaration but maintained that the scheme was compatible with article 12.

Baiai and Trzcinska appealed from Silber J’s third judgment, [2007] 1 WLR 735, which had upheld the refusal of a certificate to Mr Baiai because he was unlawfully present in the United Kingdom. The common issue was whether the scheme was a proportionate restriction on the right to marry.

Appeals disposed of: Buxton LJ, with whom Lloyd and Waller LJJ agreed, dismissed the Secretary of State’s appeal and allowed the appeal of Baiai and Trzcinska.

1. Article 12 of the European Convention on Human Rights protects a significant and fundamental right. It is not absolute. National law may regulate the exercise of marriage and may prevent marriages of convenience entered into to secure immigration advantages. Article 12 does not, however, confer a general public-interest qualification comparable to article 8(2), nor does it permit interference with genuine marriages merely because of a general immigration objective.

2. The court had to make its own proportionality assessment. Immigration is a field of broad social policy, but the relevant question was whether the scheme gave sufficient weight to the Convention right to marry. Substantial deference could not displace that judicial task.

3. The objective of preventing sham marriages used to circumvent immigration control was sufficiently important. The means chosen were not proportionate. The scheme automatically refused certificates by reference to short or absent leave to remain. It did not reliably assess whether the intended marriage was a sham, disregarded evidence of a genuine relationship, and caught marriages which conferred no material immigration advantage.

4. Requiring an affected person to leave the United Kingdom, marry abroad, or seek entry clearance from abroad was a serious practical deterrent. The absence of a right to marry in a particular country did not mean that this interference with parties already present in the United Kingdom fell outside article 12. The evidence also failed to establish that the indiscriminate scheme was necessary, particularly for marriages to settled persons or between two persons subject to immigration control.

5. The court substituted a declaration that the scheme was unlawful as inconsistent with article 12. Although a differently framed measure directed to an illegal entrant might possibly be proportionate, Mr Baiai’s refusal rested solely on the unlawful scheme and therefore fell with it.

• Court of Appeal (Civil Division) — dismissed the Secretary of State’s appeal against the article 12 ruling and allowed Baiai and Trzcinska’s appeal against the individual refusal: [2007] EWCA Civ 478.
• High Court of Justice, Queen’s Bench Division, Administrative Court (Silber J) — held the scheme incompatible with articles 12 and 14 in the first judgment, [2007] 1 WLR 693; subsequently upheld the individual refusal to Mr Baiai in the third judgment, [2007] 1 WLR 735.