Baiai & Ors, R (On The Application of) v Secretary of State For The Home Department

The case concerned whether the statutory scheme established by section 19 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, read together with the Immigration (Procedure for Marriage) Regulations 2005 and the Immigration Directorates' Instructions, involved a disproportionate interference with the article 12 right to marry of persons subject to immigration control. The court accepted that a state may take measures to prevent marriages of convenience, and that national laws may regulate the exercise of the right to marry, but held that such regulation must not impair the essence of the right and must be proportionate.

The House of Lords concluded that section 19 as enacted was not in itself objectionable, but that the Secretary of State's administrative scheme—in particular the blanket rules in the Instructions (denying permission except to those with specified periods of leave) and the high, non-waivable fee—operated as a disproportionate blanket restriction on the right to marry because it withheld permission from whole classes of persons without any procedure to distinguish genuine marriages from marriages of convenience. The discrimination between civil (registrar) marriages and marriages following ecclesiastical preliminaries was also unlawful and required correction.

Background and parties:

• The applicants were several couples seeking to marry in England where one or both parties were subject to immigration control. They sought judicial review of the Secretary of State's refusal to give written permission to marry under section 19(3)(b) of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (the 2004 Act), or of the lawfulness of the requirement to obtain such permission and the manner in which the Secretary of State exercised the power.
• The factual background included couples with differing immigration histories (illegal entrants, overstayers, persons with limited leave, and an EEA national partner) who had applied for permission to marry and in some cases had been refused, granted a short Certificate of Approval or had been required to apply under the Regulations and Instructions.

Procedural posture: The claims began by way of judicial review in the High Court (Silber J) where the scheme was held disproportionate and a declaration of incompatibility under the Human Rights Act 1998 was made (in part). The Court of Appeal ([2007] EWCA Civ 478) affirmed the High Court save on one point. The Secretary of State appealed to the House of Lords.

Issues framed:

1. Whether the section 19 scheme and its practical implementation (including the Regulations, the prescribed fee and the Immigration Directorates' Instructions) constituted a disproportionate interference with the article 12 right to marry;
2. Whether the scheme unlawfully discriminated between marriages solemnised under Part III of the Marriage Act 1949 and those following ecclesiastical preliminaries (Part II) and thus required correction;
3. Whether section 19 could be read compatibly with article 12 or whether it was incompatible in substance.

Court's reasoning and decision:

• The Lords accepted that article 12 is a strong right and that national law may regulate the right but must not impair its essence. Measures to prevent marriages of convenience are permissible, and national authorities may check the genuineness of proposed marriages. However, a blanket prohibition or an administrative scheme which prevents all persons in certain immigration categories from marrying, without any procedure to test genuineness, is disproportionate.
• The court found that section 19 taken alone could be operated compatibly with article 12 because it did not itself prescribe withholding permission in respect of genuine marriages. By contrast the Secretary of State's Instructions created categorical preconditions (periods of leave and minimum remaining leave) which were irrelevant to the genuineness of the proposed marriage and which, together with a high non-waivable fee, had the effect of imposing a blanket prohibition on exercise of the right by large classes of persons. That was disproportionate. A fee of the level charged could also impair the essence of the right.
• The court therefore read section 19(3)(b) compatibly with article 12, so that written permission of the Secretary of State to marry should not be withheld from a qualified applicant seeking to enter into a marriage which is not one of convenience and the application for, and grant of, such permission should not be subject to conditions which unreasonably inhibit exercise of the article 12 right. The declaration of incompatibility made below was set aside except insofar as it related to discrimination between civil and Anglican (ecclesiastical) preliminaries, which the Government accepted needed to be remedied.

Appeal dismissed. The House of Lords held that while a state may take steps to prevent marriages of convenience, the operational scheme as promulgated by the Secretary of State (notably the Instructions imposing blanket leave requirements and the prescribed fee) went beyond permissible regulation and amounted to a disproportionate interference with the article 12 right to marry. Section 19(3)(b) should be read so that permission to marry may not be withheld from a qualified applicant seeking to enter a genuine marriage and that applications/grants should not be subject to conditions which unreasonably inhibit the exercise of article 12. The declaration of incompatibility below was set aside except in relation to discrimination between civil and Anglican marriages.

Judicial review at first instance: Silber J ([2006] EWHC 823 (Admin); [2007] 1 WLR 693) who held the scheme disproportionate and made a declaration of incompatibility (also delivering a separate judgment in [2006] EWHC 1454 (Admin) in respect of one respondent). The Court of Appeal affirmed the High Court ([2007] EWCA Civ 478; [2008] QB 143). The Secretary of State appealed to the House of Lords ([2008] UKHL 53).