R (on the application of Baiai and others) (Respondents) v Secretary of State for the Home Department (Appellant) and one other action (formerly R (on the application of Trzcinska and others) (Respondents) v Secretary of State for the Home Department (Appellant) and one other action

The right to marry under article 12 is a strong right. National law may regulate its exercise, but conditions must not impair its essence.

A state may investigate whether a proposed marriage is one of convenience and may prevent such a marriage. It may not impose a blanket prohibition based on immigration status without examining whether the proposed marriage is genuine. A scheme operating in that way is disproportionate.

Permission must not be withheld from a person legally qualified to marry where the proposed marriage is genuine. Application conditions, including unaffordable fees, must not unreasonably inhibit exercise of the right.

The respondents included non-EEA nationals who required leave to enter or remain in the United Kingdom and their proposed spouses. Under section 19 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, they required the Secretary of State's written permission before giving notice of civil marriage. Permission was initially refused in several cases, although certificates of approval were later issued and the couples married.

Silber J held that the scheme disproportionately interfered with article 12 and was discriminatory: [2006] EWHC 823 (Admin), [2007] 1 WLR 693. In a later judgment he upheld the refusal concerning Mr Baiai: [2006] EWHC 1454 (Admin), [2007] 1 WLR 735. The Court of Appeal affirmed the principal ruling but held that immigration status was irrelevant to whether Mr Baiai's proposed marriage was genuine: [2007] EWCA Civ 478, [2008] QB 143.

The issue was whether the statutory and administrative scheme disproportionately interfered with the respondents' right to marry under article 12 of the European Convention on Human Rights.

1. Disposition. The House unanimously dismissed the Secretary of State's appeal, subject to correcting the relief. Lord Bingham delivered the leading speech. Lord Rodger, Lord Brown and Lord Neuberger agreed with Lord Bingham and Baroness Hale; Baroness Hale agreed with Lord Bingham.

2. The nature of the right. Per Lord Bingham, article 12 confers a strong right to marry. Unlike articles 8 to 11, it contains no general justification clause. National laws may regulate matters such as capacity, consent, prohibited degrees, bigamy and formalities, but must not impair the essence of the right. Authorities concerning the overlapping right to found a family did not establish that the right to marry could be qualified by the general considerations in article 8(2).

3. Immigration control and marriages of convenience. Per Lord Bingham, a state may impose reasonable conditions to determine whether a proposed marriage is one of convenience and may prevent such a marriage. Article 12 protects genuine marriage, not the acquisition of an adventitious immigration advantage through the form of marriage. The authorities did not support significant restrictions upon genuine marriages without a procedure for distinguishing them from marriages of convenience.

4. Operation of the scheme. Section 19 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, considered alone, could be operated compatibly with article 12. The Immigration Directorates' Instructions were defective because permission ordinarily depended on the applicant's period of leave rather than the genuineness of the proposed marriage. Without individual investigation, the policy imposed a blanket prohibition upon specified categories and was disproportionate. Baroness Hale agreed, describing the scheme as arbitrary, over-inclusive and unrelated to a rational assessment of genuineness or immigration advantage.

5. Fees and discrimination. Per Lord Bingham, a fee unaffordable by a needy applicant could impair the essence of the right; £295 for each applicant could have that effect. Baroness Hale further concluded that the exclusion of Anglican marriages from section 19 was discriminatory and irrational. The Government did not challenge the finding of discrimination.

6. Relief. Per Lord Bingham, section 19(3)(b) was to be read so that permission could not be withheld from a qualified applicant seeking a genuine marriage, and so that permission could not be subjected to conditions unreasonably inhibiting article 12. The declaration of incompatibility was set aside except as to discrimination. Baroness Hale explained that the surviving declaration should identify section 19(1), rather than section 19(3), as the source of discrimination between civil and Anglican preliminaries.

1. House of Lords: The Secretary of State's appeal was dismissed unanimously, subject to reading section 19(3)(b) compatibly with article 12 and correcting the declaration of incompatibility concerning discrimination: [2008] UKHL 53.
2. Court of Appeal: The court affirmed the finding that the section 19 scheme disproportionately interfered with article 12. It reversed the ruling upholding refusal of permission to Mr Baiai because his immigration status did not determine whether his proposed marriage was genuine: [2007] EWCA Civ 478, [2008] QB 143.
3. High Court: Silber J held that the scheme was disproportionate and discriminatory: [2006] EWHC 823 (Admin), [2007] 1 WLR 693. In a later judgment concerning Mr Baiai, he upheld refusal of a certificate because Mr Baiai was an illegal entrant: [2006] EWHC 1454 (Admin), [2007] 1 WLR 735.