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O' DONOGHUE AND OTHERS v. THE UNITED KINGDOM - 34848/07 [2010] ECHR 2022 (14 December 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/2022.html
Cite as:
(2011) 53 EHRR 1,
[2011] 2 FCR 197,
[2011] Fam Law 234,
30 BHRC 85,
[2010] ECHR 2022,
[2011] 1 FLR 1307
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FOURTH
SECTION
CASE OF O’DONOGHUE AND OTHERS v. THE UNITED KINGDOM
(Application
no. 34848/07)
JUDGMENT
STRASBOURG
14 December 2010
This judgment will become
final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of O’Donoghue
and Others v. the United Kingdom,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Lech Garlicki, President,
Nicolas
Bratza,
Ljiljana Mijović,
David Thór
Björgvinsson,
Ján Šikuta,
Päivi
Hirvelä,
Mihai Poalelungi, judges,
and
Lawrence Early, Section
Registrar,
Having
deliberated in private on 23 November 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 34848/07) against the United
Kingdom of Great Britain and Northern Ireland lodged with the Court
under Article 34 of the Convention for the Protection of Human Rights
and Fundamental Freedoms (“the Convention”) by a Nigerian
national, Mr Osita Chris Iwu, and three dual British and Irish
nationals, Ms Sinead O’Donoghue, Ashton Osita Iwu and
Tiernan Robert O’Donoghue (“the applicants”), on 31
July 2007.
The
applicants, who have been granted legal aid, were represented by the
Aire Centre. The United Kingdom Government (“the Government”)
were represented by their Agent, Mr Derek Walton of the Foreign and
Commonwealth Office.
On
13 November 2008 the Chamber of the Fourth Section of the Court
decided to give notice of the application to the Government and to
give the application priority in accordance with Rule 41 of the Rules
of Court. The Court furthermore decided to
inform the parties that it was considering the suitability of
applying a pilot judgment procedure in the cases (see Broniowski
v. Poland [GC], 31443/96, §§
189-194 and the operative part, ECHR 2004-V, and Hutten-Czapska
v. Poland [GC] no. 35014/97,
ECHR 2006-... §§ 231-239 and the operative part) and
requested the parties’ observations on the matter. Having
considered the parties’ observations, the Chamber decided not
to apply the pilot judgment procedure.
The parties requested an oral hearing. However, on
13 October 2009 the Court decided, under Rule 54 §
3 of the Rules of Court, not to hold a hearing on the admissibility
and merits of the application.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
1. The Certificate of Approval Scheme
A. The first version of the scheme
In 2005 the Secretary of State for the Home Department
introduced the first version of the Certificate of Approval Scheme
(“the first version”). Section 19 of the Asylum and
Immigration (Treatment of Claimants etc.) Act 2004 provided a
statutory basis for the scheme and further details were set out in
the Immigration (Procedure for Marriage) Regulations 2005
(SI 2005/15) (“the 2005 Regulations”) and the
Immigration Directorate’s Instructions (“IDIs”).
The first version of the scheme required that in order
to marry, persons subject to immigration control had to have either
entry clearance expressly granted for the purpose of enabling them to
marry in the United Kingdom or a Certificate of Approval. The
definition of “persons subject to immigration control”
excluded European Economic Area nationals and persons who had been
granted Indefinite Leave to Remain.
In order to obtain a Certificate of Approval, a person
subject to immigration control had to submit an application to the
Secretary of State for the Home Department together with an
application fee of GBP 295. If both parties to the proposed
marriage were subject to immigration control, each party had to
submit an application form and pay the required fee. The IDIs
provided that in order to qualify for a Certificate of Approval, an
applicant had to have been granted leave to enter or remain in the
United Kingdom for a period of more than six months and he or she had
to have at least three months of that leave remaining at the time of
making the application.
The first version of the scheme did not apply to
persons seeking to marry in accordance with the rites of the Church
of England.
B. The High Court’s Opinion on the first
version of the scheme
On 10 April 2006 Mr Justice
Silber delivered judgment in the case of R
(on the applications of Baiai and Others) v Secretary of State for
the Home Department [2006] EWHC 823 QB (Admin), in which he considered whether the first version of the
scheme interfered with the Articles 12 and 14 rights of those who
were subject to immigration control and who were in the United
Kingdom lawfully.
He found that it was
permissible, according to the Court’s jurisprudence, to
introduce legislation to prevent marriages entered into for the
purpose of avoiding immigration control even though this legislation
might interfere with the right to marry. Furthermore, the legislative
objective relied on by the Government of preventing sham marriages
was sufficiently important to justify limiting an Article 12 right.
However, in the case of the
first version of the scheme, the measures designed to meet the
legislative objective were disproportionate as they were not
rationally connected to it. First, all religious marriages other than
those in the Church of England required a Certificate despite the
fact that the evidence showed that sham marriages predominantly took
place in registry offices. The treatment of religious marriages
outside the Church of England was therefore a matter of concern as
they were treated like registry office marriages even though evidence
indicated that the same precautions which prevented sham marriages
taking place in the Church of England were also present in other
religious ceremonies. Secondly, there was no basis for the assumption
that all religious marriages outside the Church of England were
automatically to be treated as sham marriages, thus requiring a
Certificate, while in contrast all marriages conducted according to
the rites of the Church of England were to be regarded automatically
as not being sham marriages and therefore did not require a
Certificate. Thirdly, the first version of the scheme arbitrarily
failed to take into account many factors which might be relevant in
considering whether or not a proposed marriage was a sham, such as
clear and corroborated evidence that the parties had enjoyed a loving
relationship over a number of years, during which time they might
have had children or bought a house together. It was difficult to
understand how the scheme, which ignored factors such as these, could
be “rationally connected” to the purported legislative
aim of avoiding sham marriages. Fourthly, the first version of the
scheme was not rationally connected to the legislative objective as
it regarded the only relevant factors in determining whether a non-EU
national could marry in the United Kingdom as his or her immigration
status.
Mr Justice Silber therefore held
that the first version of the scheme was not proportionate and
constituted a substantial interference with Article 12 rights.
He also held that this version
of the scheme was incompatible with Article 14 of the Convention as
it was discriminatory on the grounds of religion and nationality. It
constituted direct discrimination as it targeted individuals who
were, because of their religious convictions or lack of them, unable
or unwilling to marry pursuant to the rites of the Church of England.
Meanwhile those who wished to marry in the Church of England were
exempted from the scheme.
Furthermore, the fact that a fee
was levied was also discriminatory as this was not required of those
with the same characteristics wishing to marry in Church of England
religious ceremonies.
In a separate judgment ([2006] EWHC 1454 (Admin)), Mr Justice Silber found that in the
case of Mr Baiai, at the time an illegal immigrant, the refusal of
permission to marry did not constitute an interference with his
rights under Article 12, as permitting him to marry an EEA national
would effectively have permitted him to “queue jump” and
would have undermined the effectiveness of immigration control.
The Secretary of State accepted
Mr Justice Silber’s findings that the first version of the
scheme under section 19 of the 2004 Act was discriminatory and did
not seek to challenge this conclusion on appeal. However, he was
granted permission to appeal against Mr Justice Silber’s
findings in respect of Article 12 of the Convention. Mr Baiai was
also granted permission to appeal.
C. The Court of Appeal’s Opinion on the
first version of the scheme
On 23 May 2007 the Court of
Appeal delivered judgment in the case of SSHD
v. Baiai and Others [2007] EWCA Civ 478. It agreed with Mr Justice Silber’s finding that the
first version of the scheme under section 19 of the 2004 Act was
disproportionate and violated Articles 12 and 14 of the Convention.
However, it disagreed with the conclusion reached in respect of Mr
Baiai. The Court of Appeal held that the immigration status of Mr
Baiai was irrelevant to the genuineness of his proposed marriage,
which alone could properly determine whether he should be free to
exercise his right to marry. It therefore dismissed the Secretary of
State’s appeal and allowed that of Mr Baiai. The Secretary of
State was granted permission to appeal to the House of Lords.
D. The House of Lords’ Opinion on
the first version of the scheme
18. On 30 July 2008 the House of Lords
handed down its opinion in the case of R.
(on the application of Baiai and others) v. Secretary of State for
the Home Department [2008] UKHL 53.
It dismissed the appeal and ordered that section 19(3)(b) of the 2004
Act should be read as meaning “has the written permission of
the Secretary of State to marry in the United Kingdom, such
permission not to be withheld in the case of a qualified applicant
seeking to enter into a marriage which is not one of convenience and
the application for, and grant of, such permission not to be subject
to conditions which unreasonably inhibit exercise of the applicant’s
right under Article 12 of the European Convention.”
Lord
Bingham observed that from the early days the Court had described the
right to marry as “fundamental” and noted that Article
12, in contrast with Article 8, conferred a right and not a right to
respect for specified areas of personal life.
Lord Bingham further observed that the scope afforded
to national law was not unlimited and it had been emphasised that
national laws governing the exercise of the right to marry should
never injure or impair the substance of the right. In practice the
Court had been firm in upholding the right to marry, finding in
favour of applicants denied the exercise of that right because they
were serving prisoners (Hamer v. the United Kingdom, no.
7114/75, Commission decision of 13 December 1979, DR 24, p. 62),
because of a mandatory delay imposed before entering into a fourth
marriage (F. v. Switzerland, 18 December 1987, Series A
no. 128), or because one applicant was the father-in-law of the
other and they could only exercise their right to marry if they
obtained a private Act of Parliament (B. and L. v. the
United Kingdom, no. 36536/02, 13 September 2005).
Lord Bingham considered, inter alia, the
Court’s decisions in Sanders v. France, no.
31401/96, Commission decision of 16 October 1996, DR 87 p. 160 and
Klip and Krüger v. the Netherlands (1997) DR 91-A, p. 66.
He concluded that:
“A national authority may properly impose
reasonable conditions on the right of a third-country national to
marry in order to ascertain whether a proposed marriage is one of
convenience and, if it is, to prevent it. This is because Article 12
exists to protect the right to enter into a genuine marriage, not to
grant a right to secure an adventitious advantage by going through a
form of marriage for ulterior reasons.
... ... ...
[The authorities] establish ... that where a
third-country national proposes to marry within the jurisdiction the
member state may properly check whether the proposed marriage is one
of convenience or not and seek information necessary for that
purpose. The authorities give no support to the proposition that a
significant restriction may be placed on all such marriages, or on a
sub-class of such marriages, irrespective of whether they are
marriages of convenience or genuine marriages and with no procedure
to ascertain whether they are the one or the other.”
22. In respect of the first version of the scheme, Lord
Bingham held:
“Apart from its discriminatory features, which the
Secretary of State has said she will remove, I do not think section
19, read alone, is legally objectionable. It is open to a member
state, consistently with article 12, to seek to prevent marriages of
convenience. There is nothing in the text of section 19 which
authorises or requires the withholding of permission to marry in the
case of any marriage which is not a marriage of convenience. Indeed,
the section makes no reference to marriages of convenience or sham
marriages and gives no hint of the grounds on which permission may be
granted or withheld. Section 19 could be operated, consistently with
its terms and with article 12, in a manner which required persons
subject to immigration control to give notice of a proposed marriage,
enabled an appropriate authority to investigate whether the proposed
marriage would be one of convenience and provided for the withholding
of permission only in cases where it appeared that the proposed
marriage would be one of convenience.
Subject to one qualification, the 2005 Regulations are
similarly, in my opinion, unobjectionable. They provide in some
detail in Schedule 2 for the information to be given by an applicant
for permission to marry, and considerable detail (more than is
required in the Schedule) is clearly necessary if enquiry is to be
made whether a proposed marriage will be one of convenience. My
qualification relates to the prescribed fee. It is plain that a fee
fixed at a level which a needy applicant cannot afford may impair the
essence of the right to marry which is in issue. A fee of £295
(£590 for a couple both subject to immigration control) could
be expected to have that effect.
The Immigration Directorates’ Instructions,
promulgated (it is understood) without express parliamentary
sanction, provide for the denial of permission to marry (save on
compassionate grounds, relatively rarely allowed in practice) to all
those who are in the country without leave, or whose grant of leave
to enter or remain in the UK on the occasion in question did not
total more than 6 months, or who did not have at least 3 months
remaining at the time of making the application for permission. The
vice of the scheme is that none of these conditions, although of
course relevant to immigration status, has any relevance to the
genuineness of a proposed marriage, which is the only relevant
criterion for deciding whether permission should be given to an
applicant who is qualified under national law to enter into a valid
marriage. It may be that persons falling within the categories
specified in the Instructions are more likely to enter into a
marriage of convenience than others, and that may be a very material
consideration when the genuineness of a proposed marriage is
investigated. But the section 19 scheme does not provide for or
envisage any investigation at all, because (as has been explained in
the evidence) such investigation is too expensive and
administratively burdensome. Thus, subject to the discretionary
compassionate exception, the scheme imposes a blanket prohibition on
exercise of the right to marry by all in the specified categories,
irrespective of whether their proposed marriages are marriages of
convenience or whether they are not. This is a disproportionate
interference with exercise of the right to marry.”
Baroness Hale of Richmond
considered that:
“It is not disputed that the Government would be
free to deny any immigration advantage to a party to a marriage which
had been entered into solely for the purpose of obtaining that
advantage. (Indeed, the respondents argue that that is already the
case, as the claimed advantages apply only to real relationships.)
But the scheme in issue here does something very different. The
legislation enables the Government to prohibit in advance a great
many marriages irrespective of whether or not they are genuine,
irrespective of whether or not there is any immigration advantage to
be obtained thereby, and without any right of appeal other than
judicial review. This strikes at the very heart of the right to marry
which is guaranteed to everyone of full age by article 12 of the
European Convention on Human Rights.”
She
found that there were many objections to the scheme, other than its
being discriminatory. In particular, she noted that:
“It covers anyone who is subject to immigration
control, that is, anyone who is not an EEA national and requires
leave to enter or remain in the United Kingdom (s. 19(4)). This
covers all non-nationals unless they have already acquired the ‘right
of abode’. All of these people are required to give notice to
the registrar in specified registration districts, irrespective of
where they live or intend to get married; and both parties to the
intended marriage must attend in person to deliver their notice (s.
19(2)). This is all irrespective of how long they have been living
here, how close their relationship and how small or non-existent the
immigration advantage there might be.
When they get to the registrar, there are only two
categories of people who need go no further. The first is a person
who has been given entry clearance expressly for the purpose of
enabling him to marry in the United Kingdom (s 19(3)(a)). The second
is a person who falls within a class specified in regulations (s
19(3)(c)). Regulation 6 of the Immigration (Procedure for Marriage)
Regulations 2005 (SI 2005/15) specifies a person ‘who is
settled in the United Kingdom’ within the meaning of paragraph
6 of the Immigration Rules. This basically means someone who is
ordinarily resident here, not in breach of the immigration laws, and
without any restriction on the period for which he may remain. A very
large number of people who have been here lawfully for a long time
will still not be ‘settled’ here in this sense.
Everyone subject to immigration control who does not
fall within those two exceptions cannot marry without the written
permission of the Secretary of State to marry in the United Kingdom
(s. 19(3)(b)). Application must be made in writing accompanied by the
fee prescribed in the 2005 Regulations, which is now £295.
If both parties require permission, therefore, they must pay
£590 to apply for it. There is no power in the regulations to
waive or reduce the fee no matter how meritorious the case. This is
on top of the much more modest fees for the actual marriage, of £30
for each notice to marry, £40 for the ceremony, and £3.50
for the marriage certificate, making a total of £103.50. It
must be a positive disincentive to couples whose desire to marry is
deep and sincere and has nothing to do with their immigration status
or where they intend to live once married.
None of these applicants will be able to find out from
the Act or the Regulations how good their chances are of getting
permission. On the face of it, the Government can adopt whatever
policy it chooses without even laying it before Parliament for
scrutiny. The current policy is contained in the published
“Immigration Directorates’ Instructions", chapter 1,
section 15. This does not depend upon any reasonable assessment,
either of the immigration advantage which the marriage might bring,
or of the genuineness of the relationship. It depends upon a rule of
thumb: permission will be granted if each person needing it has been
granted leave to enter or remain in the UK for more than six months
(calculated from when his present stay in the UK first began) and has
at least three months of this remaining when he makes the
application. Even within this category, permission will be refused if
there is good reason to believe that either of the parties lacks
capacity to marry in English law. Outside this category, permission
will be refused unless “there are exceptionally compassionate
features” making it unreasonable to expect them to travel,
either to marry abroad or to apply for entry clearance from abroad.
The examples given are pregnancy or some other condition making the
person unfit to travel abroad. They do not include features
suggesting that the marriage is genuine, because that is not the
point.
This policy automatically excludes all asylum seekers
because they do not have leave to enter. The policy states that they
should not normally be permitted to marry until after their claims
have been determined. But if an initial decision on an application or
an appeal has been outstanding for 18 months (and we understand that
time starts running afresh once an appeal has been lodged), or if
they cannot be expected to travel abroad for compelling compassionate
reasons, the permission may be granted. It is, of course, extremely
unlikely that any genuine asylum seeker will be in a position to
travel back to the country from which he has fled to escape a
well founded fear of persecution, nor would it be consistent
with this country’s obligations under the Refugee Convention to
compel him to do so.
It is an indication of how over-inclusive the statutory
scheme is that the great majority of applications for permission are
granted. From 1 February 2005, when section 19 came into force, until
10 April 2006, when Silber J handed down his first judgment, 14,787
applications for permission to marry or enter a civil partnership
were dealt with. 12,754 were granted, only 41 of these on exceptional
or compassionate grounds, the rest because they met the leave
criteria. 1,805 were refused. 228 were withdrawn or discontinued. We
are told that this was quite deliberate. The Government simply
decided to subject a large number of proposed marriages to the
deterrent effect of scrutiny and to prohibit all those in the class
which they thought most likely to contain the suspect unions. Making
a serious attempt to distinguish between the “sham” and
the genuine was considered too difficult and too expensive.”
E. Amendments to the first version of the scheme
Following
the judgments of Mr Justice Silber on 10 April 2006, the first
version of the scheme was amended. Under the new procedure
(“the second version”), applicants who had
insufficient leave to enter or remain at the time of applying for a
Certificate of Approval could be asked to submit further information
in support of their applications to enable the Home Office to satisfy
itself that the proposed marriage or civil partnership was genuine.
Further
amendments followed the Court of Appeal judgment on 23 May 2007
(“the third version”). Under the third version of the
scheme, applications from individuals who did not have valid leave to
enter or remain, who had until this point been refused a Certificate
of Approval unless there were exceptional compassionate
circumstances, were to be treated in line with the guidance for those
who had limited but insufficient leave to qualify for a Certificate.
With
effect from 9 April 2009 the Government suspended the requirement to
pay any fee. On 10 July 2010 a scheme for repaying fees to applicants
who met a financial hardship test at the time of the application met
with Ministerial approval.
On
27 July 2010 a proposal for a draft Asylum and Immigration (Treatment
of Claimants etc.) Act 2004 (Remedial) Order 2010 was laid before
Parliament. If the draft order is
approved by both Houses of Parliament, it is expected to
come into force early in 2011. Once in force, it will
effectively abolish the Certificate of Approval scheme.
2. The circumstances of the
applicants
The
applicants were born in 1974, 1979, 2006 and 2000 respectively and
live in Londonderry.
The first applicant has both
Irish and British nationality. She is married to the second
applicant, who is a Nigerian national of Biafran ethnic origin. The
third applicant is the child of the first and second applicant and
the fourth applicant is the first applicant’s child from a
previous relationship. Both the third and fourth applicants have
British and Irish nationality.
31. The applicants are practising Roman
Catholics.
32. The first and second applicants care for
the third and fourth applicants and also for the first applicant’s
disabled parents. The first applicant receives Invalid Carer’s
Allowance, Income Support, Child Benefit and Housing Benefit. The
second applicant is not entitled to work.
3. The factual background to the
application
The second applicant arrived in
Northern Ireland in 2004 and claimed asylum in 2006. In November 2009
he was granted Discretionary Leave to Remain, which runs until
November 2011.
The second applicant met the
first applicant in November 2004 and they began living together in
December 2005. In May 2006 the second applicant proposed to the first
applicant and she accepted.
On 9 July 2007 the first and
second applicants applied for a Certificate of Approval and requested
to be exempted from the GBP 295 fee. They explained in detail that
the first applicant survived on Invalid Carer’s Allowance and
Income Support and that the second applicant was destitute as a
result of not being permitted to work. This explanation was attached
to the application and a supporting letter from their Member of
Parliament was sent.
On 18 July 2007 their
application was returned to them with a letter stating the following:
“If an applicant does not pay the specified fee,
his or her application is invalid. The specified fee has not been
paid in connection with your attempted application which you made by
post on 9 July 2007. We do not consider that an exception to the
requirement to pay the fee applies in this case, therefore your
application is invalid and we are returning your documents.”
In July 2008 a group of the applicants’ friends
contributed towards the fee required to make an application for a
Certificate of Approval. The applicants subsequently made an
application with the donated funds. On receiving the application
form, a case worker asked the first and second applicants to submit
further information about their relationship. They submitted two
sworn affidavits. The case worker was satisfied with the information
provided and the applicants were issued with a Certificate of
Approval on 8 July 2008. They married on 18 October
2008.
II. RELEVANT DOMESTIC LAW AND PRACTICE
1. The Certificate of Approval scheme
Section 19 (1) of the Asylum
and Immigration (Treatment of Claimants etc.) Act
2004 (“the 2004 Act”) imposed certain requirements before
a person subject to immigration control was able to marry, otherwise
than in accordance with the rites of the Church of England under Part
II of the Marriage Act 1949.
Section 19 (3) of the 2004 Act
stipulated, as relevant, that:
“(3) The superintendent registrar shall not enter
in the marriage notice book notice of a marriage to which this
section applies unless satisfied, by the provision of specified
evidence, that the party subject to immigration control—
(a) has an entry clearance granted expressly for the
purpose of enabling him to marry in the United Kingdom,
(b) has the written permission of the Secretary of State
to marry in the United Kingdom....”
Section 19 (4) (a) of the 2004
Act provided that a person “subject to immigration control”
was a person who was not a European Economic Area (EEA) national and
who required leave to enter or remain in the United Kingdom.
Section 23 of the 2004 Act
provided the following in relation to Northern Ireland:
“(1) This section applies to a marriage—
(a) which is intended to be solemnised in Northern
Ireland, and
(b) a party to which is subject to immigration control.
(2) In relation to a marriage to which this section
applies, the marriage notices—
(a) shall be given only to a prescribed registrar, and
(b) shall, in prescribed cases, be given by both parties
together in person at a prescribed register office.
(3) The prescribed registrar shall not act under Article
4 or 7 of the Marriage (Northern Ireland) Order 2003 (S.I. 2003/413
(N.I.3)) (marriage notice book, list of intended marriages and
marriage schedule) unless he is satisfied, by the provision of
specified evidence, that the party subject to immigration control—
(a) has an entry clearance granted expressly for the
purpose of enabling him to marry in the United Kingdom,
(b) has the written permission of the Secretary of State
to marry in the United Kingdom, or ...”
Permission from the Secretary of
State was granted by the issuing of a Certificate of Approval
pursuant to the procedure provided for in the Immigration (Procedure
for Marriage) Regulations 2005 (SI 2005/15) (“the 2005
Regulations”).
Regulation 7 of the 2005
Regulations provided that:
“(1) A
person seeking the permission of the Secretary of State to marry in
the United Kingdom under section 19(3)(b), 21(3)(b) or 23(3)(b) of
the 2004 Act shall—
(a) make an application in writing; and
(b) pay a fee on the submission of the
application in accordance with regulation 8.
(2) The information set out in
Schedule 2 is to be contained in or provided with the application.”
44. Schedule
2 indicated that both parties to an intended marriage should state
their name, date of birth, name at birth (if different), nationality,
contact details, passport or travel document numbers, Home Office
reference numbers (where applicable), details of their current
immigration status (if applicable), the date on which their current
leave was granted and the date on which that leave was to expire
(where applicable), and details of any previous marriages and
divorces.
45. The fee on application to the
Secretary of State for the Home Department was initially fixed at GBP
135. It was increased to GBP 295 on 2 April 2007.
There was no statutory right of appeal for an applicant who alleged
that they could not afford to pay the fee. If the fee was not paid,
the application for a Certificate was invalid and there was no
discretion for the fee to be waived. The refusal of an application
for a Certificate did not constitute an immigration decision and
there was no statutory right of appeal against it.
In
February 2005 the Immigration Directorate issued instructions on
authority to marry. The Immigration Directorate’s Instructions
(“IDIs”) stated that under the 2004 Act persons subject
to immigration control who wished to marry in the United Kingdom had
to first meet an additional qualifying condition before they could
give notice of the marriage: they were required to have an entry
clearance or be settled in the United Kingdom or have a Home Office
Certificate of Approval. Chapter 1, section 15, para 3, of the IDIs
(“Criteria for Granting a Certificate of Approval”)
provided that:
“In order to qualify for a certificate of
approval, a person must have valid leave to enter or remain in the UK
as follows. He must have been granted leave to enter or remain in the
UK totalling more than 6 months on this occasion; and have at least 3
months of this leave remaining at the time of making the
application.”
The
IDIs stated that a Certificate of Approval would be refused if there
was good reason to believe that there was a legal impediment to the
marriage, as on grounds of age, consanguinity or an existing
marriage. A Certificate of Approval would normally be refused to
a person not qualified to be granted one, but a Certificate could be
granted on compassionate grounds.
2. The first amendment
The Certificate of Approval scheme was amended
following the judgment of Mr Justice Silber. UKBA guidance stated
that under the new procedures UKBA could write to persons who had
insufficient leave to enter or remain at the time of applying for a
Certificate of Approval, asking that they submit further information
in support of their application to enable UKBA to be satisfied that
the proposed marriage or civil partnership was genuine. Any such
letter would ask for information about:
when,
where and how the applicant and their fiancé(e)/proposed
civil partner met;
when
the couple decided to marry or enter into a civil partnership;
where
the couple intended to live if permitted to marry or to enter into a
civil partnership in the United Kingdom;
arrangements
for any religious ceremony, including the nature of the ceremony,
the person conducting it and relevant contact details, arrangements
for any reception or celebration, including details of the location,
proof of booking and relevant contact;
the
applicant’s relationship with his or her fiancé(e)/proposed
civil partner if the couple was not living together (e.g. letters
and photographs as evidence of the relationship);
the
applicant’s life with his or her fiancé(e)/proposed
civil partner if the couple was living together, including the
address(es), how long they had lived together and documentary
evidence in the form of correspondence addressed to both parties at
the same address from utilities, government bodies, local
authorities, financial institutions etc.;
any
children from the applicant and his or her fiancé(e)/proposed
civil partner’s present or previous relationships, including
where they lived, the length of time any of them had lived with the
applicant and his or her fiancé(e)/proposed civil partner,
the names of their natural parents and details of who supported
them;
contact
telephone numbers for the applicant and his or her
fiancé(e)/proposed civil partner in case an officer wishes to
contact either of you;
and any
additional information which the applicant would like to submit,
and/or any additional supporting evidence or documentation which
might help the application.
3. The second amendment
Following
the Court of Appeal judgment, the Government further amended the
scheme. UKBA guidance indicated that applications from individuals
who did not have valid leave to enter or remain (illegal entrants,
persons who had been refused leave to enter but granted temporary
admission or temporary admission pending the outcome of an
application for leave to enter, and those who had overstayed their
leave to remain), who had previously been refused unless there were
exceptional compassionate circumstances for granting a Certificate of
Approval, would be treated in line with the guidance for those who
had limited, but insufficient, leave to qualify for a Certificate.
4. Subsequent developments
In
March 2009 the AIRE Centre and the Joint Council for the Welfare of
Immigrants brought judicial review proceedings in respect of the
failure of the Home Office to comply with that part of the House of
Lords judgment which related to the level of the fees being charged.
The night before the ruling the Government agreed to suspend the fees
with effect from 9 April 2009.
On
10 July 2010 a scheme for the repayment of the full fee to applicants
who met a financial hardship test by making ex gratia payments
received ministerial approval. In order to meet the test for real
financial hardship, applicants would have to provide evidence that
the payment of the fee led the couple to experience real financial
hardship at the time of the application. The test would take into
account whether both parties to the proposed marriage were on
benefits, including asylum support, or whether they had income below
a certain threshold.
In
November 2009 the Government notified the Court of its intention to
abolish the Certificate of Approval Scheme. On 27 July 2010 the
Asylum and Immigration (Treatment of Claimants etc.) Act 2004
(Remedial) Order 2010 was laid before Parliament and it is
anticipated that it will come into force early in 2011.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 12 OF THE CONVENTION
The
applicants complained that the existence of the Certificate of
Approval scheme and its application to them violated their right to
marry as provided in Article 12 of the Convention, which reads as
follows:
“Men and women of marriageable age have the right
to marry and to found a family, according to the national laws
governing the exercise of this right.”
The
Government contested that argument.
A. Admissibility
The
Government submitted that insofar as the applicants were complaining
about the level of the fee charged, they had failed to exhaust
domestic remedies. Unlike the scheme itself, the fee level was the
product of secondary legislation and it would therefore have been
open to the applicants to pursue a remedy in respect of the level of
the fees charged under the Certificate of Approval scheme before the
national courts.
The
applicants rejected this submission. They argued, inter alia,
that the Government had not provided the Court with evidence of any
remedy which existed, either in theory or in practice, at the
relevant time which could have addressed the level of fees charged
for Certificates of Approval.
The
Court reiterates that the purpose of Article 35 is to afford the
Contracting States the opportunity of preventing or putting right the
violations alleged against them before those allegations are
submitted to it (see, inter alia, Civet v. France [GC],
no. 29340/95, § 41, ECHR 1999-VI). However, the Court recalls
that the Convention only requires that applicants exhaust “effective
remedies”, which are capable of providing redress for their
complaints (see Akdivar and others v. Turkey judgment of
16 September 1996, Reports of Judgments and Decisions
1998-II,
§§ 65-66).
At
the time the applicants introduced their complaints with the Court,
the House of Lords’ opinion in the lead case of Baiai
was still pending. As the level of fees was itself a key aspect of
that appeal, the Court considers that even if an effective remedy had
existed at the domestic level the applicants cannot be reproached for
not having mounted a separate challenge on the fees issue alone.
The
Court therefore finds that the applicants have exhausted domestic
remedies for the purposes of Article 35 of the Convention. Itfurther
notes that this complaint is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
The parties’ submissions
A. The applicants
The
applicants alleged that the existence of the Certificate of Approval
scheme and its application to them constituted a disproportionate
interference with their right to marry and found a family.
The
applicants submitted that they first formed the intention to marry in
late 2005, when the first version of the scheme was still in
operation. Under that scheme, individuals were to be automatically
refused Certificates of Approval if they did not have a sufficient
number of months’ extant leave to enter or remain. As the
second applicant did not have leave to remain, any application would
have been refused at this stage.
The
second version of the scheme had been introduced on 10 April 2006.
Under this scheme persons with insufficient leave would not
automatically be refused a Certificate but could be asked to provide
further information about their relationship. However, as the second
applicant still had no leave to remain in the United Kingdom, he
would not have been eligible to qualify for a Certificate. He only
became eligible to qualify for a Certificate after the third version
of the scheme was introduced on 19 June 2007. However, the
second applicant was still unable to obtain a Certificate of Approval
as he could not pay the fee. Although he submitted an application,
including detailed reasons why he was unable to pay, his application
was rejected outright for non-payment. He was only able to obtain a
certificate after his friends and family organised a “whip
round”.
The
applicants accepted that States should be entitled to take the
measures necessary to prevent sham marriages. However, they argued
that as the impugned scheme applied to all those subject to
immigration control irrespective of whether the marriage would have
had any effect – actual or potential – on their
immigration status, it was disingenuous to suggest that it had the
legitimate aim of preventing sham marriages.
The
applicants submitted that their relationship was not a sham and there
was nothing about it which would give rise to any suspicion that it
might be a sham. On the contrary, the first and second applicants had
been cohabiting since 2005, they had a child together and they
jointly parented the second applicant’s child from a previous
relationship.
The
applicants further submitted that even if it was accepted that the
scheme pursued a legitimate aim, it was disproportionate as it failed
to take account of the different personal circumstances which could
affect different individuals. In particular, they submitted that the
level of the fee was too high and that the legislation made no
provision for persons who could not pay the fee to be exempted. For
the applicants, and for many others, the amount of the fee alone
nullified the right to marry. The applicants submitted that in
addition to the fee for the Certificate of Approval, couples wishing
to marry had to pay a further GBP 103 for marriage formalities.
In addition, if they wished to apply to UKBA for a change of
immigration status, they would then have to pay a further sum of
between GBP 465 and GBP 1020 (depending on the status sought and the
service provided). The cumulative level of these fees was
disproportionate and beyond the means of most of the immigrant
population. The high fees charged for obtaining Certificates of
Approval were therefore an inherent interference with the right to
marry for the vast majority of those affected by the scheme, and not
just “the poorest of the poor”.
The
applicants invited the Court to note that if, as the Government
claimed, the scheme was really intended to reduce the incidence of
sham marriages entered into for immigration purposes, this intention
had to be predicated on the assumption that all those who were
subject to the scheme’s provisions could obtain an immigration
advantage through marriage. The level of fees charged to those who
stood to gain no immigration advantage by marrying their chosen
partner was per se excessive and objectionable irrespective of
the financial hardship which they might suffer.
The
applicants strongly disputed the Government’s assertion that
the House of Lords only found that the religious discrimination and
the level of fees charged to be in violation of the Convention and
that the statute and regulations were “otherwise
unobjectionable”. On the contrary, Lord Bingham clearly
stated that the scheme could only be justified to the extent that it
operated to prevent sham marriages. Likewise Baroness Hale identified
a number of objections to the scheme. First, it covered all
non nationals unless they had acquired a right of abode,
irrespective of how long they had been living in the United Kingdom,
how close their relationship was and how small or non-existent the
immigration advantage might be. Secondly, the decision whether or not
to grant a Certificate of Approval did not depend upon any reasonable
assessment, either of the immigration advantage which the marriage
might bring, or of the genuineness of the relationship. Instead, it
depended upon a rule of thumb: permission would be granted if each
person needing it had been granted leave to enter or remain in the
United Kingdom for more than six months and had at least three months
of this remaining when he made the application. Thirdly, the policy
automatically excluded all asylum seekers because they did not have
leave to enter. Fourthly, it was an indication of how over-inclusive
the statutory scheme was that the great majority of applications for
permission were granted.
B. The Government
The
Government did not accept that the first and second applicants had
formed the intention to marry before the second applicant proposed in
May 2006. The covering letter of 9 July 2007, under which the
application for a Certificate of Approval was submitted, stated that
the couple decided to marry in May 2006. Although the applicants had
indicated in the affidavits supporting their application for a
Certificate that they had previously discussed marriage, they both
clearly stated that they only decided to become engaged in May 2006
and planned to marry in September 2007. There was no suggestion that
they had intended to marry earlier but were unable to do so on
account of the scheme. The Government therefore submitted that the
applicants were only affected by the third version of the scheme.
Under this version, aside from the payment of the fee, the
requirement to obtain a Certificate of Approval did not prevent the
applicants from marrying.
The
Government did not accept that the Certificate of Approval scheme of
itself constituted a violation of the applicants’ rights.
Instead, they submitted that the House of Lords had identified three
problems with the first version of the scheme: first, the manner in
which the scheme was operated constituted a disproportionate
interference with the right to marry under Article 12 of the
Convention; secondly, the existence of a fixed fee at a level which a
needy applicant might not be able to afford could impair the essence
of the right to marry; thirdly, the exemption for marriages conducted
in the Church of England made the scheme discriminatory in breach of
Article 14 read together with Article 12. In all other respects, the
House of Lords held that the 2004 Act and the 2005 Regulations were
unobjectionable and could be operated compatibly with Convention
rights.
The
Government accepted the findings of the domestic courts.
In particular, the Government accepted that in principle the fee
was capable of infringing the Article 12 rights of a needy applicant.
The
Government submitted, however, that by the time the applicants
applied for a Certificate of Approval, the first scheme had been
amended to distinguish between sham and genuine marriages and no
longer constituted a disproportionate interference with the right to
marry. The level of the fee had been the subject of active
consideration by the Government. The fee was suspended with effect
from 9 April 2009 and on 10 July 2010 the Government introduced a
scheme whereby needy applicants could reclaim the money paid.
C. The third party interveners
i. The Equality and Human Rights Commission
The
Equality and Human Rights Commission (“the Commission”)
expressed a number of concerns about the continued operation of the
Certificate of Approval Scheme in the United Kingdom. First, it
submitted that far from acting on the premise that all persons were
to be permitted the right to marry under Article 12 unless they fell
within some legitimate and proportionate exclusionary provision which
did not deny the essence of the right, the scheme, even following
modification, proceeded on the assumption that all those within the
affected class were to be refused permission unless and until the
Secretary of State positively took a decision to grant them the right
to marry.
Secondly, although the Government in the course of the domestic
proceedings had argued that the scheme was targeting “marriages
of convenience”, it accepted that it had made no attempt to
distinguish between genuine marriages and marriages of convenience in
devising the scheme.
Thirdly,
the Commission referred to Article 1 of the EC Council Resolution
97/C382/01 of 4 December 1997 on measures to be adopted on the
combating of marriages of convenience. Unlike the scheme, which
adopted a blanket approach, the focus of the Resolution was almost
entirely concerned with post-marital scrutiny of a marriage involving
a foreign national in order to determine whether permission should be
granted on the basis of that marriage.
Fourthly,
the scheme remained discriminatory and disproportionate because it
subjected a large class of foreign nationals who were not of the
Anglican faith to a presumption that any marriage that they entered
into in the United Kingdom would automatically be a marriage of
convenience unless and until they proved otherwise. There was nothing
in the Convention jurisprudence which permitted such an approach.
Fifthly,
the Commission submitted that the section 19 scheme was unnecessary
and therefore disproportionate to the stated goal of preventing
marriages of convenience. In particular, it submitted that the
UnitedKingdom already had procedures for identifying sham marriages
and preventing those who entered into them from obtaining any
immigration benefit. Section 24 of the Immigration and Asylum Act
1999 imposed a duty on a registrar of marriages to report to the
Secretary of State without delay any case in which he had reasonable
grounds for suspecting that a marriage was not genuine. There was no
reason why this power could not alert the Secretary of State either
to take immediate action or to scrutinise with particular care any
later application by a party to the marriage for leave to remain. In
addition, paragraph 284 of the Immigration Rules HC 395 (as amended)
contained a procedure for carrying out a full investigation into the
genuineness of marriages involving foreign nationals who sought to
rely on that marriage in order to secure permission to remain in the
United Kingdom. The Government therefore had no need to
introduce the section 19 scheme.
Sixthly,
nearly three years after the scheme was declared to be discriminatory
by the Administrative Court, the Secretary of State had failed to put
any legislation before Parliament to remove the discriminatory
elements.
Seventhly,
the fee levied was disproportionate and excessively high. This had a
particularly harsh impact on the affected group, many of whom had not
been in the United Kingdom for a long time and had not had an
opportunity to build up their financial resources. No mechanism
existed for appealing against the level of the fee or for seeking a
waiver.
Eighthly,
the scheme lacked adequate procedural protection and remained
over-inclusive and arbitrary.
Finally,
the Commission submitted that the subsequent changes to the scheme
were nothing more than cosmetic and did nothing to remove the
fundamental objections to it.
ii. The Immigrant Council of Ireland –
Independent Law Centre
The
Immigrant Council of Ireland (“ICI”) also submitted that
section 19 of the Asylum and Immigration (Treatment of Claimants
etc.) Act 2004 disproportionately restricted the right to marry. The
ICI emphasised that the United Kingdom’s immigration law
already contained provisions on sham marriages. Consequently, parties
to a marriage contracted solely for the purpose of circumventing
immigration rules would not be able to rely on national laws or on
Article 8 of the Convention to oblige the Government to grant or
renew residence permits. Therefore, rather than interfere with the
right to marry, the problem of sham marriages could have been fully
dealt with by proportionate and transparent Article 8 compliant rules
relating to the grant of permission to remain as a consequence of a
marriage.
2. The Court’s assessment
Article
12 secures the fundamental right of a man and woman to marry and
found a family. The exercise of the right to marry gives rise to
social, personal and legal consequences. It is subject to national
laws of the Contracting States but the limitations thereby introduced
must not restrict or reduce the right in such a way or to such an
extent that the very essence of the right is impaired (see Rees v.
the United Kingdom, 17 October 1986, § 50, Series A no.
106; F. v. Switzerland, judgment of 18 December 1987, Series A
no. 128, § 32; B. and L. v. the United Kingdom, no.
36536/02, § 34, 13 September 2005).
The
Convention institutions have accepted that limitations on the right
to marry laid down in the national laws may comprise formal rules
concerning such matters as publicity and the solemnisation of
marriage. They may also include substantive provisions based on
generally recognised considerations of public interest, in particular
concerning capacity, consent, prohibited degrees of affinity or the
prevention of bigamy. In the context of immigration laws and for
justified reasons, the States may be entitled to prevent
marriages of convenience, entered solely for the purpose of securing
an immigration advantage. However, the relevant laws – which
must also meet the standards of accessibility and clarity required by
the Convention – may not otherwise deprive a person or a
category of persons of full legal capacity of the right to marry with
the partners of their choice (see Hamer v. the United Kingdom,
no. 7114/75, Comm. Rep. 13 December 1979, D.R. 24,
pp. 12 et seq., §§ 55 et seq.; Draper v. the United
Kingdom, no. 8186/78, Comm. Rep., 10 July 1980, D.R. 24, §
49; Sanders v. France, no. 31401/96, Com. Dec., 16 October
1996, D.R. no. 160, p. 163; F. v. Switzerland cited
above; and B. and L. v. the United Kingdom, no. 36536/02,
13 September 2005, §§ 36 et seq.)
The
fundamental nature of the right to marry is reinforced by the wording
of Article 12. In contrast to Article 8 of the Convention, which
sets forth the right to respect for private and family life, and
with which the right “to marry and to found a family” has
a close affinity, Article 12 does not include any permissible grounds
for an interference by the State that can be imposed under paragraph
2 of Article 8 “in accordance with the law” and as being
“necessary in a democratic society”, for such purposes
as, for instance, “the protection of health or morals” or
“the protection of the rights and freedoms of others”.
Accordingly, in examining a case under Article 12 the Court would not
apply the tests of “necessity” or “pressing social
need” which are used in the context of Article 8 but would have
to determine whether, regard being had to the State’s margin of
appreciation, the impugned interference has been arbitrary or
disproportionate (Frasik v. Poland, no. 22933/02, §
90, ECHR 2010 ... (extracts)).
In
the present case it is clear that from December 2005 the first and
second applicants were living together in a longstanding and
permanent relationship. Although they indicated in their application
to the Court that they first formed the intention to marry in
December 2005, in the affidavits supporting their application for a
Certificate of Approval both applicants clearly stated that they
decided to become engaged in May 2006 and that they hoped to marry in
September 2007. The Court therefore considers that the first and
second applicants formed the intention to marry in May 2006.
When
the first and second applicants formed the intention to marry in May
2006 the second version of the Certificate of Approval scheme was in
operation. As the second applicant had no leave to remain in the
United Kingdom at that time, he did not qualify for a Certificate of
Approval in the absence of exceptional circumstances. On 19 June 2007
the third version of the scheme extended the possibility of
qualifying for a Certificate of Approval to those who were awaiting
the outcome of an application for leave to remain. Although the
second applicant potentially qualified for a Certificate from this
date onwards, he could not afford the application fee which had been
increased to GBP 295 on 2 April 2007. Nevertheless,
he submitted an application to the Secretary of State for the Home
Department on 9 July 2007 but that application was refused outright
for non-payment of the fee. The first and second applicants only
obtained a Certificate of Approval after their friends helped them to
pay the fee. The couple married on 18 October 2008.
87. It
is clear from the Court’s case-law and from earlier Commission
decisions that a Contracting State may properly impose reasonable
conditions on the right of a third-country national to marry in order
to ascertain whether the proposed marriage is one of convenience and,
if necessary, to prevent it. Consequently, a Contracting States will
not necessarily be acting in violation of Article 12 of the
Convention if they subject marriages involving foreign nationals to
scrutiny in order to establish whether or not they are marriages of
convenience (see Klip and Krüger v.
the Netherlands, Sanders v. France, both
cited above, and Frasik v. Poland, cited above, §
89). Such scrutiny may be exercised by requiring
foreign nationals to notify the authorities of an intended marriage
and, if necessary, asking them to submit information relevant to
their immigration status and to the genuineness of the marriage (Klip
and Krüger v. the Netherlands).
Moreover, a requirement that a non-national planning to marry in a
Contracting State should first obtain a certificate of capacity will
not necessarily violate Article 12 of the Convention
(Sanders v.
France). Consequently, the Court agrees
with the House of Lords that the requirement under section 19 of the
2004 Act that non-EEA nationals submit an application to the
Secretary of State for the Home Department for a Certificate of
Approval before being permitted to marry in the United Kingdom
is not inherently objectionable.
88. However,
the Court has a number of grave concerns, most of which apply to all
three versions of the Certificate of Approval scheme. First, the
Court observes that the decision whether or not to grant a
Certificate of Approval was not, and continues not to be, based
solely on the genuineness of the proposed marriage. Unlike the
schemes with which the Commission was concerned in Sanders
and Klip and Krüger,
in the present case the first version of the scheme did not require
applicants to submit any information about the strength or duration
of their relationship as the scheme did not provide for or envisage
any investigation into the genuineness of the proposed marriages.
Rather, the IDIs suggested that the Secretary of State’s
decision on whether or not to grant a Certificate would be based
solely on whether the applicant was in possession of sufficient leave
and whether there was any legal impediment to marriage. The second
version of the scheme provided that persons with insufficient leave
could be required to submit information concerning the genuineness of
their relationship, while the third version of the scheme extended
this requirement to applicants with no valid leave to remain.
However, under all three versions of the scheme applicants with
“sufficient” leave to remain qualified for Certificates
of Approval without any apparent requirement that they submit
information concerning the genuineness of the proposed marriages.
89. Secondly,
the Court is especially concerned that the first and second versions
of the scheme imposed a blanket prohibition on the exercise of the
right to marry on all persons in a specified category, regardless of
whether the proposed marriage was one of convenience or not. Under
the first version of the scheme, only those foreign nationals with
sufficient leave to remain (that is, those who had been
granted leave to enter or remain for a period totalling more than six
months and who had at least three months of this leave remaining at
the time of making the application) could qualify for a Certificate
of Approval. Although the second version of the scheme extended
eligibility to persons with insufficient leave, it continued to
exclude persons who had no valid leave to enter. It was only the
third version of the scheme which extended eligibility to persons
like the second applicant who had no valid leave to enter. The
Court recalls that it has previously, albeit in different
circumstances, held that a general, automatic and
indiscriminate restriction on a vitally important Convention right
fell outside any acceptable margin of appreciation, however wide that
margin was (Hirst v. the United Kingdom (no. 2) [GC], no.
74025/01, § 82, ECHR 2005 IX). Likewise, in the
present case, the Court considers that there is no justification
whatsoever for imposing a blanket prohibition on the right of persons
falling within these categories to exercise their right to marry.
Even if there was evidence to suggest that persons falling within
these categories were more likely to enter into marriages of
convenience for immigration purposes – and the Government have
submitted no such evidence to the Court in the course of these
proceedings – the Court finds that a blanket prohibition,
without any attempt being made to investigate the genuineness of the
proposed marriages, restricted the right to marry to such an extent
that the very essence of the right was impaired. The existence of the
exception on compassionate grounds did not remove the impairment of
the essence of the right, as this was an exceptional procedure which
was entirely at the discretion of the Secretary of State. Moreover,
the Secretary of State’s decision whether or not to exercise
this discretion appears to have been based entirely on the personal
circumstances of the applicants and not on the genuineness of the
proposed marriages.
90. Thirdly,
the Court agrees with the view expressed by Lord Bingham (set out at
paragraph 22 above) that a fee fixed at a level which a needy
applicant could not afford could impair the essence of the right to
marry. It recalls that it has previously found, in the context
of a complaint under Article 6 § 1 of the Convention, that
depending on the circumstances of a case, including the applicant’s
ability to pay, the level of a fee may in itself be such as to
restrict the enjoyment of a Convention right (see, for example, Kreuz
v. Poland, no. 28249/95, § 60, ECHR 2001 VI).
In view of the fact that many persons who are subject to immigration
control will either be unable to work in the United Kingdom, such as
the second applicant, or will fall into the lower income bracket, the
Court also agrees that in the present case the fee of GBP 295 was
sufficiently high to impair the right to marry. Moreover, the Court
does not consider that the system of refunding fees to needy
applicants, such as the second applicant, which was introduced in
July 2010, constitutes an effective means of removing any impairment
as the requirement to pay a fee, even if there is a possibility that
it could be later refunded, may act as a powerful disincentive to
marriage.
The
foregoing considerations are sufficient to enable the Court to
conclude that from May 2006, when the applicants formed the intention
to marry, until they were issued with a Certificate of Approval on 8
July 2008, the very essence of the first and second applicants’
right to marry was impaired. From May 2006 to 19 June 2007, the
essence of the right was impaired because the second applicant was
not eligible to be issued with a Certificate of Approval under the
second version of the scheme. From 19 June 2007 to 8 July 2008
the essence of the right was impaired by level of the fee charged.
There
has accordingly been a violation of Article 12 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN
CONJUNCTION WITH ARTICLE 12
The
applicants complained of a violation of Article 14 of the Convention
read together with Article 12.
Article
14 of the Convention provides that:
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
A. Admissibility
The Court notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
Merits
1. The parties’ submissions
A. The applicants
The
applicants argued that the first version of the scheme was inherently
discriminatory from the outset as it did not – and continued to
not – apply to those who chose to marry in the Church of
England. Although in law persons of any religious adherence or none
were entitled as of right to marry in their local Church of England,
most adherents of other faiths, or no faith, would find it repugnant
to do so. Moreover, there was no tenable justification for this
difference in treatment. As Mr Justice Silber had noted in his
judgment of April 2006, there was no evidence whatsoever to suggest
that any other religious marriages, celebrated under the rights of
other Christian denominations or faiths, were sham.
The
applicants also asked the Court to take note of the fact that the
inherently discriminatory aspect of the scheme was not removed, even
though more than four years had passed since the declaration of
incompatibility was first made. The applicants submitted that after
the judgment of Mr Justice Silber the Government should at the very
least have suspended the application of the scheme to all religious
marriages.
In
addition to discrimination on grounds of religion, the applicants
submitted that the scheme was also discriminatory on grounds of
nationality and poverty.
B. The Government
The
Government conceded that, through being subjected to a regime that
those wishing to marry in the Church of England would not have been
subjected to, the applicants’ rights under Article 14, read
together with Article 12, had been breached. The Government therefore
accepted that the Certificate of Approval scheme was discriminatory
on the ground of religion. With regard to the failure to remove the
discriminatory aspect of the scheme, the Government submitted that
they did not act following the judgment of Mr Justice Silber because
they were reluctant to rush to remedy the Article 14 incompatibility
until a final judgment on the whole of the scheme was available.
Following the House of Lords’ judgment, they entered into
discussions with a view to bringing the Church of England within the
scheme. In spite of the discussions, however, no agreement could be
reached. The Government now plan to abolish the Certificate of
Approval scheme in 2011. In the meantime, as the scheme was contained
in legislation passed by Parliament, it would be contrary to the rule
of law and the separation of powers for the Home Office to instruct
registrars not to comply with it.
The
Government denied that the scheme involved any discrimination on the
grounds of nationality or poverty. Any discrimination on the ground
of nationality was justified by reference to the legitimate objective
of immigration control. Moreover, insofar as the level of the fee was
alleged to be too high, that issue ought to be considered under
Article 12 and not under Article 14.
The Court’s assessment
The
Court has established in its case-law that only differences in
treatment based on an identifiable characteristic, or “status”,
are capable of amounting to discrimination within the meaning of
Article 14 (Kjeldsen, Busk Madsen and Pedersen,
cited above, § 56). Moreover, in order for an issue to arise
under Article 14 there must be a difference in the treatment of
persons in analogous, or relevantly similar, situations (D.H. and
Others v. the Czech Republic [GC], no. 57325/00, § 175,
ECHR 2007; Burden v. the United Kingdom [GC], no.
13378/05, § 60, ECHR 2008 ). Such a difference of treatment
is discriminatory if it has no objective and reasonable
justification; in other words, if it does not pursue a legitimate aim
or if there is not a reasonable relationship of proportionality
between the means employed and the aim sought to be realised. The
Contracting State enjoys a margin of appreciation in assessing
whether and to what extent differences in otherwise similar
situations justify a different treatment (Burden, cited above,
§ 60). However, the scope of this margin will vary according to
the circumstances, the subject-matter and the background.
The
Court agrees with the parties that the first version of the scheme
was discriminatory on the ground of religion. The second applicant
was in a relatively similar position to a person with no leave to
remain who was willing and able to marry in the Church of England.
However, a person without leave who was willing and able to marry
according to the rites of the Church of England was free to marry
unhindered. The second applicant, on the other hand, was both
unwilling (on account of his religious beliefs) and unable (on
account of his residence in Northern Ireland) to enter into
such a marriage. Consequently, he was initially prohibited from
marrying at all in the United Kingdom and, following the amendments
to the scheme, he was only permitted to marry after submitting an
application to the Secretary of State and paying a sizeable fee.
There was therefore a clear difference in treatment between the
second applicant and the person who was willing and able to marry in
the Church of England. The Court agrees with Mr Justice Silber’s
conclusion that no reasons were adduced by the Government in the
course of the domestic proceedings which were capable of providing an
objective and reasonable justification for the difference in
treatment.
The
Court therefore finds that there has been a violation of the
applicants’ rights under Article 14 read together with Article
12.
The
Court notes that Mr Justice Silber also found the first version of
the scheme to be discriminatory on the ground of nationality.
The applicant further submits that the scheme is discriminatory
on the ground of poverty. The Government have contested both of these
grounds before the Court.
In
view of its findings in relation to discrimination on the ground of
religion, the Court does not consider it necessary to reach a
conclusion on whether the scheme was discriminatory on any other
ground. However, in respect of the applicants’ submission that
the scheme was discriminatory on the ground of nationality, the Court
would make two observations.
First,
the Court recalls that EEA nationals and non-EEA nationals in
possession of Indefinite Leave to Remain were expressly excluded from
the Certificate of Approval scheme. It is therefore inclined to
consider that any difference in treatment was on the ground of
immigration status and not, in fact, on the ground of nationality.
Secondly,
it recalls that the Government did not challenge Mr Justice
Silber’s finding that the scheme was discriminatory on the
ground of nationality in their appeal to the Court of Appeal.
Consequently, the challenge to this finding before the Court would
potentially have raised a question of estoppel (see A. and Others
v. the United Kingdom [GC], no. 3455/05, §§ 153 –
159, ECHR 2009 ...).
III. ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION READ ALONE
AND TOGETHER WITH ARTICLE 14
The
applicants complained that their rights under Article 9 of the
Convention had been violated as the Certificate of Approval scheme
prevented them from marrying unless they married in the Anglican
Church. Relying on Article 14 of the Convention, read together with
Article 9, they further complained that they were discriminated
against in securing the enjoyment of this right.
The
Government conceded that, through being subject to a regime to which
those wishing to marry in the Church of England would not have been
subject, the first and second applicant’s rights under Article
14, taken together with Article 9, had been breached.
The
Court sees the complaint under Article 9 as one which primarily
raises a discrimination issue. There is no indication that the
applicants were in any manner hindered in the exercise of their right
to practise their religion. That being said, the facts of the case
fall within the ambit of Article 9 and Article 14 of the Convention
is therefore applicable. It therefore declares the complaint under
Article 9 standing alone to be manifestly ill-founded and rejects it
in accordance with Article 35 §§
3 and 4 of the Convention.
On the other hand, it declares the complaint under Article 14 read
together with Article 9 to be admissible and, for the reasons
conceded by the Government, it finds that there has been a violation
of the applicants’ Convention rights.
IV ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION READ ALONE AND
TOGETHER WITH ARTICLE 14
The
applicants complained that the existence of the Certificate of
Approval scheme and its application to them disproportionately
interfered with their right to respect for their private and family
life. They further complained that they were discriminated against in
securing the enjoyment of this right. They relied on Article 8 of the
Convention read alone and together with Article 14.
The
Court does not consider the applicants’ complaints under
Article 8 to be manifestly ill-founded within the meaning of Article
35 §§ 3 of the Convention. It further notes that it is not
inadmissible on any other grounds and must, therefore, be declared
admissible. However, having regard to its findings under Article 12
(see paragraphs 82 – 92 above), the Court considers that no
separate issue arises under Article 8 of the Convention, either read
alone or in conjunction with Article 14.
V. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
The
applicants alleged that the facts of the case also gave rise to a
violation of Article 13 of the Convention.
The Court observes that the lead case of Baiai v
the United Kingdom, which raised similar issues, clearly
demonstrates that effective domestic remedies were available to
challenge the incompatibility of the Certificate of Approval scheme.
Consequently, it finds, in the light of all the material in its
possession and in so far as the matters complained of are within its
competence, that the complaint under Article 13 does not disclose any
appearance of a violation of the rights and freedoms set out in the
Convention or its Protocols.
It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 and
4 of the Convention.
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicants claimed GBP 295 in respect of pecuniary damage and GBP
12,000 in respect of non-pecuniary damage.
The
claim for pecuniary loss represented the fee which they were required
to pay in order to apply for a Certificate of Approval.
The applicants submitted that they applied to the Secretary of
State for the Home Department for a refund under the repayment scheme
but had not received a reply.
The
applicants claimed that they had suffered non-pecuniary damage under
three distinct heads. First, there was the prolonged uncertainty as
to whether they would ever be able to legitimise their relationship
with each other and with their child. Secondly, there were the
intense feelings of frustration which arose from knowing that the
scheme had been declared incompatible with their Convention rights
while continuing to have it applied to them. Thirdly, the applicants
suffered acutely as a consequence of the unequal treatment which they
received. This suffering was more acute because the applicants were
Roman Catholics and, as such, had long been the victims of religious
discrimination in Northern Ireland.
In
respect of the claim for pecuniary loss the Government submitted that
the applicants would be eligible for repayment of the fee under the
repayment scheme.
In
respect of the claim for non-pecuniary damage, the Government denied
that there was a clear causal link between any feelings of
uncertainty and frustration and the violation. While such feelings
would pertain to the making of any application of this kind, the
Government disputed that the requirement to make such an application
in itself amounted to a violation of the applicants’ Convention
rights.
The
Government further submitted that any attempt to characterise the
discrimination as particularly acute in the case of Northern Irish
Catholics was wholly misconceived. First, any historical
discrimination against Catholics in Northern Ireland was not relevant
to the Certificate of Approval scheme or any violation arising from
it. Secondly, as there was no Anglican Church in Northern Ireland, no
church there was exempt from the scheme.
The
Court recalls that in previous cases in which it has found a
violation of Article 12 of the Convention, it has generally held that
the finding of a violation amounted to adequate just satisfaction
(see, for example, F. v. Switzerland, cited above,
§§ 44 – 45; B. and L. v. the United
Kingdom, cited above, §§ 45 – 47). Exceptionally,
in the case of Frasik v. Poland (cited above), the
applicant was awarded EUR 5,000 in respect of non-pecuniary
damage.
In the present case the Court observes that there are two aggravating
factors. First, the finding of a violation was coupled with the
finding of a violation of Article 14 read together with both Articles
12 and Article 9. Secondly, the Court observes that from 10 April
2006 until the first and second applicants were granted a Certificate
of Approval, the offending scheme was in operation despite a finding
by the domestic courts that it breached both Article 12 and Article
14 of the Convention. The Court therefore awards the applicants EUR
8,500 jointly in respect of non pecuniary damage.
The
Court awards the applicants the sum of GBP 295 in respect of
pecuniary loss, insofar as the sum has not been already paid.
B. Costs and expenses
The
applicants also claimed GBP 28,044.50 for the costs and expenses
incurred before the Court.
The
Government contended that the hours claimed and the costs and
expenses incurred were unreasonably high.
According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and that
they were reasonable as to quantum. In the present case, regard being
had to the documents in its possession and the above criteria, the
Court considers it reasonable to award the sum of EUR 16,000 for the
proceedings before the Court.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the complaints concerning Article 8 and Article 12
and concerning Article 14 of the Convention read together with
Articles 8, 9 and 12 admissible and the remainder of the application
inadmissible;
2. Holds that there has been a violation of Article 12 of the
Convention;
3. Holds that there has been a violation of Article 14 of the
Convention read together with Article 12;
4. Holds that there has been a violation of Article 14 of the
Convention read together with Article 9;
5. Holds that there is no need to examine the complaints
under Article 8 of the Convention, read either alone or in
conjunction with Article 14;
6. Holds
(a) that
the respondent State is to pay the applicants jointly, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
the following amounts, to be converted into British pounds, where
appropriate, at the rate applicable at the date of settlement:
(i) EUR
8,500 (eight thousand five hundred euros), plus any tax that may
be chargeable, in respect of non pecuniary damage;
(ii) GBP
295 (two hundred and ninety-five British pounds) in respect of
pecuniary damage; and
(iii)
EUR 16,000 (sixteen thousand euros), plus any tax that may be
chargeable to the applicants, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate
equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;
7. Dismisses the remainder of the applicants’ claim for
just satisfaction.
Done in English, and notified in writing on 14 December 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Lech Garlicki
Registrar President
