Quila & Anor v Secretary of State for the Home Department

A policy requiring both parties to a marriage to be aged at least 21 before a foreign spouse may obtain leave to enter or remain was rational and proportionate to the legitimate aim of preventing forced marriage. A bright-line rule need not investigate every marriage to determine whether it is forced, particularly where individual discretion remains available in compelling compassionate cases. Article 8 does not generally confer a right to choose the country in which married life is enjoyed. An immigration refusal may engage Article 8 only where the interference reaches the required minimum level. Differential treatment based on age may satisfy Article 14 scrutiny where the policy has a legitimate aim and its impact is proportionate.

The claimant, a Chilean national, challenged refusals of leave to remain as the spouse of a British citizen. His wife was 17 when he applied. The Secretary of State applied paragraph 277 of the Immigration Rules, as amended with effect from 27 November 2008 to raise the minimum age from 18 to 21.

The claim alleged that the policy was irrational and ultra vires, disproportionate under Article 8 of the ECHR, discriminatory under Article 14, and unlawfully applied without an exception for a genuine marriage. The claimant also challenged the refusal to grant leave outside the Rules. The central issues were whether the policy was lawful and whether its application breached the couple’s Convention rights.

1. Disposition. Permission to apply for judicial review was granted, but the application was dismissed. None of the challenges to the policy or its application succeeded.
2. The policy pursued the legitimate and important aim of reducing forced marriage. The evidence showed a serious and potentially under-reported problem, with a disproportionate number of identified cases involving persons under 21. The Secretary of State was entitled to treat the research evidence with caution and to make her own policy judgment after considering consultation responses, statistical material and other evidence. The policy was rational and intra vires Immigration Act 1971, section 3(2) (paras [29]–[39]).
3. A rule requiring investigation of every marriage would impose substantial practical burdens and might expose forced-marriage victims to further risk. The absence of an individual investigation mechanism therefore did not make the policy irrational or disproportionate. The availability of leave outside the Rules in compelling compassionate circumstances softened the rule’s impact (paras [35]–[39], [51]–[52]).
4. Following Abdulaziz, Cabales and Balkandali v UK [1985] 7 EHRR 471, Article 8 does not generally require a state to accept a non-national spouse for settlement or respect the couple’s choice of matrimonial residence. In this case there were no sufficient obstacles or special reasons making it unreasonable for the wife to live in Chile. The minimum level of Article 8 engagement was not reached (paras [41]–[44], [57]–[65]).
5. The analogy with R (Baiai) v Secretary of State for the Home Department [2009] 1 AC 287 was unhelpful because that case concerned the distinct and stronger right to marry under Article 12. If Article 8 had been engaged, the policy’s application would nevertheless have been proportionate (paras [45]–[52], [66]).
6. The age distinction fell within Article 14’s ambit through Article 8. Applying the approach in R (Carson) v Work and Pensions Secretary [2006] 1 AC 173, the difference in treatment withstood scrutiny because it pursued a legitimate aim by proportionate means (paras [53]–[56]). The Secretary of State was not irrational in refusing leave outside the Rules after considering the relevant personal circumstances (paras [67]–[68]).

First-instance judicial review proceedings. Permission was granted, but the application was dismissed.