R (on the application of Quila and another) v Secretary of State for the Home Department

Article 8 family life normally arises from a genuine marriage and ordinarily includes cohabitation. Refusing admission to a foreign spouse may therefore interfere with family life where it forces prolonged separation or relocation, even if the state’s obligation is characterised as positive.

A measure intended to deter forced marriage must satisfy objective proportionality review. A blanket minimum-age rule is disproportionate where its deterrent benefit is uncertain, it obstructs substantially more voluntary marriages than forced marriages, and the state has not shown that it is necessary or strikes a fair balance. Appropriate weight may be given to executive expertise, but the court must determine compatibility with the European Convention on Human Rights.

Two conjoined cases concerned genuine, unforced marriages involving British sponsors and foreign spouses. The foreign spouses were refused marriage visas because one or both parties were under 21, as required by rule 277 of the Immigration Rules 1994. The rule’s sole purpose was to deter forced marriage rather than to control immigration.

Burnett J dismissed the claim in Quila: [2009] EWHC 3189 (Admin). Permission to seek judicial review was refused in Bibi. The Court of Appeal allowed the resulting appeals and declared the refusals unlawful under article 8: [2010] EWCA Civ 1482. The Secretary of State appealed, raising whether the refusals interfered with family life and, if so, whether the amended minimum-age rule was proportionate.

1. Disposition. The appeals were dismissed by a majority of four to one. Lord Wilson and Lady Hale held that the refusals infringed article 8. Lord Phillips and Lord Clarke agreed with both judgments. Lord Brown dissented.

2. Engagement of article 8. A genuine marriage normally creates family life, and family life ordinarily includes cohabitation. The refusals forced each couple either to live apart for approximately three years or to relocate abroad and suspend the British spouse’s plans for life, education and work. That was a substantial interference. The majority declined to follow the no-engagement conclusion in Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471. Later Strasbourg decisions had eroded the distinction between positive and negative obligations. The retained proposition that article 8 creates no general right to choose the country of matrimonial residence instead required a fact-specific justification inquiry.

3. Judicial responsibility. Under section 6(1) of the Human Rights Act 1998, the Secretary of State had to act compatibly with Convention rights. Proportionality was for the court to determine objectively. The court could give appropriate weight to executive expertise and access to specialist advice, but the executive’s assessment was not decisive. The Secretary of State bore the burden of justifying the interference.

4. Proportionality. Preventing forced marriage was a legitimate and important objective. Raising the visa age was rationally connected to that objective. The measure nevertheless failed the requirements of necessity and fair balance. The Secretary of State had not produced robust evidence that it would substantially deter forced marriage. Several plausible consequences could reduce its effectiveness or worsen the position of victims.

   Conversely, the rule predictably obstructed thousands of voluntary marriages. The number of unforced marriages affected vastly exceeded the uncertain number of forced marriages deterred. The Secretary of State had neither assessed that imbalance adequately nor shown that the blanket rule was no more intrusive than necessary.

5. Article 12. Lady Hale, with Lord Phillips and Lord Clarke, added that the measure used interference with article 8 family life to impede exercise of the fundamental right to marry. Its general, automatic and indiscriminate character, without an attempt to distinguish forced from genuine marriages, reinforced the conclusion of disproportionality.

6. Future application and dissent. Although human-rights decisions are individual, the majority considered it difficult to see how applying the amendment to an unforced marriage could avoid infringing article 8. Lord Brown would have allowed the appeals. He regarded the comparative benefits and harms as a policy judgment within a very substantial area of governmental discretion and considered the available evidence and exceptions sufficient to uphold the rule.

1. United Kingdom Supreme Court: In R (on the application of Quila and another) v Secretary of State for the Home Department [2011] UKSC 45, the Secretary of State’s appeals were dismissed by a majority of four to one.
2. Court of Appeal: The respondents’ appeals were allowed. The court declared that applying the minimum-age rule to refuse their marriage visas was unlawful under article 8: [2010] EWCA Civ 1482.
3. Administrative Court: Burnett J dismissed the claim in Quila: [2009] EWHC 3189 (Admin). His Honour Judge Pearl separately refused permission to seek judicial review in Bibi.