Quila & Ors v Secretary of State for the Home Department & Ors

A blanket immigration age rule may be rationally connected to the legitimate aim of preventing forced marriage, but proportionality requires more than a plausible connection or a headcount of those affected. Where a British citizen sponsor has entered a genuine voluntary marriage, applying Immigration Rules (HC 1113) paragraph 277 to exclude the foreign spouse under 21 can disproportionately interfere with the fundamental right to make the marriage real through cohabitation and with family life under Article 8. Existing waiver and appeal mechanisms, the rule’s temporary and indirect effect, speculative evidence of efficacy, and the armed-forces exception undermined the need for a blanket application. Relief may be confined to the individual cases without striking down the rule.

Two judicial review appeals challenged paragraph 277 of the Immigration Rules, which generally prevented a foreign spouse under 21 from entering or remaining in the United Kingdom. Diego Aguilar, a Chilean national, had married a British citizen, while Shakira Bibi, a Pakistani national, had married a British citizen in an arranged but voluntary marriage. Burnett J dismissed the Aguilar challenge to the rule and its application: [2009] EWHC 3189 (Admin). Judge Pearl refused Bibi permission to apply for judicial review, principally because a statutory appeal was available: [2009] EWHC 2322 (Admin). The Court of Appeal considered rationality, common-law proportionality, Articles 8, 12 and 14 of the Convention, and whether relief should invalidate the rule generally or be confined to these appellants.

1. Disposition. The appeals were allowed. Paragraph 277 could not lawfully be applied to the appellants and their British sponsors, although the court declined to strike down the rule generally. Subject to any other valid objection, the appellants were entitled to enter the United Kingdom as the spouses of British citizens.
2. Common-law and Convention rights. Sedley LJ held that proportionality has an independent role in common-law judicial review where executive action interferes with a fundamental right, following the approach in R v Home Secretary, ex p Daly [2001] UKHL 26 and De Freitas v Ministry of Agriculture [1999] 1 AC 69. He considered the combined effect of the fundamental right to marry and to make the marriage real through cohabitation, together with Article 8 family life, to be directly engaged. Abdulaziz, Cabales and Balkandali v United Kingdom [1985] 7 EHRR 471 did not decide the position where the sponsor was a British citizen with an indefeasible right of abode.
3. Proportionality. The objective of preventing forced marriage was sufficiently important, and the age rule was rationally connected to it. The decisive question was necessity and proportionality. The rule operated as an irrebuttable presumption against a much larger class of innocent couples, had only a temporary and indirect preventative effect, and rested on speculative evidence. Waiver policies and in-country and out-of-country appeals already permitted individual circumstances and voluntariness to be examined. The armed-forces exception also weakened the contention that a wholly rigid rule was necessary. A mathematical comparison of numbers affected was inadequate.
4. Separate reasoning. Pitchford LJ accepted that the established family life of the couples engaged Article 8 and applied the Strasbourg factors concerning disruption, ties, obstacles to family life elsewhere, immigration control and precarious immigration status. Gross LJ agreed with the result by an alternative Wednesbury route: applying the rule to a couple whose marriage was accepted to be genuine was irrational, and the asserted need for a blanket rule was contradicted by existing exceptions and appeals. Pitchford LJ considered Article 12 had no independent role; Gross LJ considered it immaterial.
5. The discrimination argument based on South Asian origin was rejected. The court did not separately determine the Article 14 challenge based on the armed-forces exception.

• Court of Appeal (Civil Division): allowed both appeals, holding that paragraph 277 could not lawfully be applied to the appellants, while declining to invalidate the rule generally: [2010] EWCA Civ 1482.
• Administrative Court: Burnett J dismissed the Aguilar challenge to the rule and its application: [2009] EWHC 3189 (Admin). Judge Pearl, sitting as a deputy High Court judge, refused Bibi permission to apply for judicial review, principally because a statutory appeal was available: [2009] EWHC 2322 (Admin).