R (Aguilar Quila) v Secretary of State for the Home Department

This appeal concerned the lawfulness of the Secretary of State's amendment to rule 277 of the Immigration Rules 1994 (HC395) which raised the minimum age for grant of a marriage visa from 18 to 21. The Secretary of State justified the change as aimed at deterring forced marriage. The central legal issues were whether the refusal to grant visas in the two individual cases interfered with the applicants' rights under article 8 ECHR and, if so, whether that interference was justified as proportionate under article 8(2).

The Supreme Court held that the refusal to grant the marriage visas constituted a serious interference with the right to respect for family life and that the Secretary of State had not shown she possessed robust evidence that the blanket increase to 21 was necessary or proportionate. The court emphasised that the Secretary of State had not identified the scale of forced marriages prevented compared with the much larger number of genuine marriages adversely affected. Applying the proportionality assessment under article 8(2), the court concluded the interference was not justified and dismissed the appeals.

Background and nature of the claims:

• These are two consolidated appeals by the Secretary of State against the Court of Appeal's declaration that her application of rule 277 (as amended on 27 November 2008) so as to refuse marriage visas to the respondents was unlawful under article 8 ECHR.
• The respondents were foreign spouses of British citizens; the rule prevented grant of a marriage visa unless both parties would be aged 21 on arrival or grant of leave.
• The Secretary of State's expressed purpose in raising the minimum age was to deter forced marriages.

Procedural history:

• Permission to appeal to the Supreme Court followed the Court of Appeal decision, Sedley, Pitchford and Gross LJJ, [2010] EWCA Civ 1482. The first instance claim had been dismissed by Burnett J ([2009] EWHC 3189 (Admin)).

Facts:

• Quila: a Chilean national married a British citizen; both were young (born 1990 and 1991). Their marriage was genuine and consensual. The applicant was refused a visa under the new rule and commenced judicial review; eventually, after the Court of Appeal decision, the Secretary of State granted the visa.
• Bibi: a Pakistani national married a British citizen in Pakistan in October 2008; both freely consented. Her application for entry clearance was refused because both parties were under 21.

Issues framed by the court:

1. Whether the Secretary of State's refusal engaged article 8 rights to respect for family life.
2. If article 8 was engaged, whether the amendment to rule 277 was justified as "necessary in a democratic society" under article 8(2) — essentially, whether the rule was a proportionate means of deterring forced marriage.

Court’s reasoning and subsidiary findings:

• The court rejected reliance on Abdulaziz v United Kingdom as a binding constraint and followed later Strasbourg authorities (such as Boultif and Tuquabo-Tekle) that treat positive/negative obligation distinctions as less determinative; it found article 8 engaged because the refusals imposed a substantial interference with family life.
• On justification the Secretary of State bore the burden and had to show the measure pursued a legitimate aim and was proportionate. The court accepted the aim (protection against forced marriage) and lawfulness in form, but required a close proportionality assessment.
• The court set out a series of unanswered empirical questions about the policy's deterrent effect and observed that the Secretary of State had failed to demonstrate robust evidence that the increase to 21 would materially deter forced marriages to a degree sufficient to justify the wide interference with genuine marriages.
• The court found the rule to be a "blunt instrument": it likely obstructed many more genuine, consensual marriages than it prevented forced marriages. The Secretary of State had not identified or quantified that balance, or shown the measure was "no more than necessary" or that it struck a fair balance between individual rights and community interests.
• The court noted the existence of some supporting evidence (including later parliamentary committee material and practices in other States) but concluded that that material did not cure the absence of robust evidence at the time the amendment was introduced nor justify its blanket application in the two cases.

Relief sought and result:

• The respondents sought declarations and relief under the Human Rights Act. The Supreme Court concluded the Secretary of State infringed article 8 in the two contested cases and dismissed her appeals.

This is an appeal against the Court of Appeal’s declaration that the Secretary of State’s application of amended rule 277 (raising the minimum age for marriage visas to 21) was unlawful in the two cases. The Supreme Court held that the refusals interfered with the respondents’ article 8 rights and that the Secretary of State had not demonstrated that the blanket age increase was necessary and proportionate to the legitimate aim of preventing forced marriage. The appeals were dismissed for failure to justify the interference with family life.

First instance: Administrative Court, Queen's Bench Division, Burnett J, claim dismissed ([2009] EWHC 3189 (Admin)). Court of Appeal: allowed respondents' appeals and declared Secretary of State's application of rule 277 unlawful ([2010] EWCA Civ 1482). Appeal to the Supreme Court ([2011] UKSC 45).