COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MR JUSTICE SILBER
CO/1460/2005; CO/6898/2005; CO/7442/2005
Strand, London, WC2A 2LL
B e f o r e :
Vice-President of the Court of Appeal (Civil Division)
Lord Justice Buxton
Lord Justice Lloyd
| Case No C4/2006/1469
The Secretary of State for the Home Department
|- and -
|Mahmoud Baiai and Izabela Trzcinska
Leonard Bigoku and Luljeta Agolli
The Joint Council for the Welfare of Immigrants
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Mr Ramby de Mello, Mr Satvinder Singh Juss and Mr Adrian Berry (instructed by David Tang & Co) for the respondents Baiai and Trzcinska
Mr Manjit Gill QC and Mr James Collins (instructed by Sheikh & Co) for the respondents Bigoku, Agolli and Tilki
Mr Richard Drabble QC and Mr Eric Fripp (instructed by The Joint Council for the Welfare of Immigrants) for the Intervener
Case No C4/2006/1621
Mahmoud Baiai and Izabela Trzcinska
- and -
The Secretary of State for the Home Department
The Joint Council for the Welfare of Immigrants
Miss Monica Carss-Frisk QC, Mr Angus McCullough and Mr Richard Mumford(instructed by the Solicitor to Her Majesty’s Treasury) for the Respondent
Mr Richard Drabble QC and Mr Eric Fripp (instructed by The Joint Council for the Welfare of Immigrants) for the Intervener
Hearing dates : 30 April-2 May 2007
Crown Copyright ©
Lord Justice Buxton :
The history and position of the claimants
i) EEA nationals. These are persons who are citizens of one of the countries in the European Economic Area, who have a right to remain in this country as a worker or other qualified person (eg students or job-seekers) as defined in regulation 6 of the Immigration (European Economic Area) Regulations 2006 [the 2006 Regulations].
ii) Persons "settled" in the United Kingdom. This category includes British citizens, but also other persons who, although still subject to immigration control, have various permissions, such as indefinite leave to remain, that give them a right of permanent residence here without restriction as to the period for which they may remain.
i) Baiai and Trzcinska. Mr Baiai is an Algerian, illegally in this country without any attempt to regularise his immigration status since February 2002. Ms Trzcinska, as a citizen of Poland working here, is an EEA national. The couple met in August 2004, and started a relationship. Mr Baiai needed to apply for a COA because he had no leave at all to remain in the United Kingdom. He so applied in January 2005, and was refused in February 2005.
ii) Bigoku and Agolli. Mr Bigoku is a national of the former Republic of Yugoslavia who arrived in the United Kingdom and claimed asylum in 1998. He was granted exceptional leave to remain under a concession then in force until July 2000. His asylum claim was not however rejected until January 2006. Ms Agolli is also a national of the former Republic of Yugoslavia who was granted exceptional leave to remain, to expire on 31 January 2007. Both of them are subject to immigration control, and accordingly submitted applications for separate COAs on 13 May 2005, which were granted in September 2005. We were told by Miss Carss-Frisk that that decision was influenced by the very long period over which Mr Bigoku had waited for a decision on his asylum claim, and also by medical considerations that advised against travel abroad. Mr Bigoku and Ms Agolli nonetheless persist in their claim, seeking damages for the alleged delay in dealing with their COA application. Both of them are subject to immigration control, and thus subject to the regime. Neither of them fall into either of the categories summarised in §9 above.
iii) Ms Tilki is a Turkish national whose application for asylum was refused in December 2004, she being granted limited leave to remain expiring in September 2005. She wished to marry a Mr Mehmet Ince, also a Turkish national. He was granted indefinite leave to remain in July 2002, and therefore is a settled person (see § 9(ii) above). She applied for a COA in June 2005, which was granted in September 2005, despite her not falling within the principal category to which under the policy COAs are granted. We were told by Miss Carss-Frisk that the decision was based on Ms Tilki's then pregnancy. She also nonetheless continues her proceedings in the hope of recovering damages for the delay in attending to her application for a COA.
The Secretary of State's reasons for introducing the scheme
The immigration advantages of marriage
66. After four years, there is an avenue to permanent residence available for that spouse provided that his or her EEA national spouse continues to exercise treaty rights. A residence permit can be refused if a marriage is shown to be marriage of convenience in the form of a "sham" marriage or if it can be demonstrated that the EEA national is not exercising his or her treaty rights. Miss Bennett states that it is very difficult in practice to prove that a marriage is not genuine after it has taken place.
67. Miss Bennett stresses that there have been a substantial number of sham marriages which have taken place notwithstanding the legislation, which was in force before the 2004 Act and the 2005 Order were introduced. She also states these sham marriages give the non-EEA national the chance to obtain substantial rights to remain in the United Kingdom which they would not otherwise have enjoyed. There is a substantial amount of evidence about the large number of such marriages taking place in circumstance in which it is extremely difficult to detect they were sham marriages after they had taken place because, as Miss Bennett explains in her witness statement, that :
"in relation to all marriages (both those to EEA nationals and those to British citizens or people settled here) existing enforcement powers were considered insufficient to solve the problem of sham marriages. It is simply not possible to have immigration officers attending every single wedding, or conducting home visits to, or interviews with, every couple who is getting married or who has recently been married, in order to establish whether the marriage is genuine-this would be extremely resource intensive and we do not have such resources available. It was therefore considered that the better solution would be to make it more difficult to enter into sham marriage in the first place".
68. Miss Bennett points out that a marriage by a non-EEA national to either a British national or an EEA national would give the non-EEA national many advantages. Such a marriage could assist a person, who had no basis for coming to or remaining in the United Kingdom by providing a basis on which to apply for entrance clearance as the spouse of a person settled here because:
a) the Secretary of State's marriage policy (DP3/96) provides that removal or deportation will not be enforced if the person subject to deportation or removal was married and has lived together with his or her spouse continuously for at least two years prior or the start of the enforcement action. The beneficiaries of that policy become entitled to a discretionary leave to remain. This is an important factor because, as Miss Bennett points out, it is "relatively common" for persons who are in the United Kingdom unlawfully not to make themselves known to the immigration authorities;
b) parties to a sham marriage may seek to rely on that marriage to resist removal on the basis that removal would infringe their rights to a private and family life under Article 8 of the ECHR. Miss Bennett points out first that such claims are "particularly common" where an asylum claim has been made and been rejected and second that it is very difficult to prove that any particular marriage was not genuine but was a sham entered into solely to obtain immigration advantages for the party who is neither a British national nor an EEA national;
c) the spouse of a person settled here would ordinarily be expected to regularize their stay so that if they are here unlawfully they would be expected to return home to obtain the appropriate entry clearance as spouse. A sham marriage could assist a person who had no basis for coming to the United Kingdom by providing a basis on which to apply as for entry clearance as the spouse of a person settled here and
d) caseworkers dealing with applications for dependants of EEA nationals suspect in many cases that marriages are sham marriages but they are unable to refuse applications on that ground because a lack of resources makes it impossible to conduct a home visit or an interview.
69. According to Miss Bennett, third party nationals who marry EEA nationals have a number of immigration advantages over those who marry British nationals and in particular they:
a) do not need to live together for their marriage to be regarded as genuine and subsisting;
b) are entitled to bring a wider range of dependants into the United Kingdom;
c) are not subject to the "no switching rule" which prohibits visitors and certain other categories of foreign categories from applying for leave to remain as the spouse of a British national, as they benefit from Treaty rights as soon as they are married;
d) are not required to meet the maintenance and accommodation requirements of the Immigration Rules and
e) are not charged for their applications.
70. Significantly, as I have explained, Miss Bennett has stressed that once a non-EEA national claims a right to remain in the United Kingdom following a sham marriage to an EEA national exercising Treaty rights, it is difficult to remove them because of the difficulty of establishing that the marriage was not genuine after it has taken place especially because a lack of resources prevents immigration officials from attending every single marriage or conducting home visits or interviews with every couple whether before or after their marriages have taken place.
The incidence of marriages of convenience
There is clear and undisputed evidence that there have been a substantial number of sham marriages in the United Kingdom. Mr. Mark Rimmer, the Superintendent Registrar in the London Borough of Brent, has explained that:
a) since he took up his position in 1988, there has been a significant problem with sham marriages arranged for the purpose of avoiding immigration control. In many cases, there was no effort to conceal that this was the purpose of the marriage with the illegal entrants admitting that this was the purpose of the marriage. Couples very frequently were unable to converse in the same language and they required interpreters to enable them to communicate with each other. They often appeared to know very little about the person that they were about to marry;
b) until early 2001, the only remedy open to him was to report his suspicions to the Registrar General, who could if there was sufficiently compelling evidence then refer the matter to the Immigration Service but he said that nothing appeared to happen as a result of these reports;
c) after 2001, the legal position changed, because section 24 of the Immigration and Asylum Act 1999 placed a statutory duty on registrars to report suspicious marriages to the Home Office. In addition with effect from 1 January 2001, couples had to give a minimum of 15 days' notice to a registrar prior to the marriage taking place, stating where they resided and the nationality of both parties. Registrars were also from that time obliged by statute to report suspicious marriages direct to the Immigration Service;
d) these changes made little difference and his personal experience was that about 20% of all marriages conducted between 2001 and the implementation of the 2004 Act were sham in the sense of being entered into "purely to obtain more advantageous immigration status";
e) this meant that during this period, there were about 250 sham marriages alone in Brent. Miss Bennett states that in 2001, 756 reports were received of suspicious marriages, which were forwarded to the Immigration Service but that this number later increased to 1,205 in 2002, to 2,700 in 2003 and to 3700 in 2004 ;
f) in some London Boroughs, notably Haringey, up to 50% of marriages were considered to be for the purpose of circumventing immigration control;
g) there had been an increasing trend in Brent and also in Westminster where one party to the marriage is subject to immigration control and the other party to be a national from a country from within the EEA (primarily from France, Holland, Portugal and Belgium) to provide utility bills and bank statements as evidence of their address. He explained that upon comparison with the Superintendent Registrar of Westminster City Council, it was discovered that a number of bank statements and utility bills listed identical transactions and balances with the only difference being the name recorded as the account holder. He prepared a significant file of such documents, all of which were found to be forgeries. At a meeting of London registration managers held in December 2003, it became apparent that the majority of districts were receiving similar documents as evidence of addresses of those wishing to marry.
The marriage provisions were introduced in the light of growing evidence of an increase in the number of marriages taking place where the purpose is to circumvent immigration control (these are referred to by the Home Office, including by me in this Witness Statement, as "sham marriages", regardless of whether or not the parties actually intend to live together as man and wife). Reports from Registrars and other intelligence sources suggested that the majority of these marriages involve people who are in the United Kingdom illegally or on a short term basis.
Men and women of marriageable age have the right to marry and found a family, according to the national laws governing the exercise of this right
The reference to founding a family is no doubt explained by memories, recent when the ECHR was formulated, of experiments in eugenics. That has mercifully not troubled the Convention countries since 1950, and does not arise in this case. And as the present case revealed, jurisprudence on the reach and status of article 12 as applied to the right to marriage is comparatively limited, only one of the cases put before us having been decided by the ECtHR, as opposed to the former Commission.
The terms of article 12
Article 12 guarantees a fundamental "right to marry". Whilst this is expressed as a "right to marry…according to the national laws governing the exercise of this right", this does not mean that the scope afforded to national law is unlimited. If it were, Article 12 would be redundant. The role of national law, as the wording of the Article indicates, is to govern the exercise of the right….Such laws may thus lay down formal rules concerning matters such as notice, publicity and the formalities whereby marriage is solemnised. They may also lay down rules of substance based on generally recognised considerations of public interest. Examples [are] rules concerning capacity, consent, prohibited degrees of consanguinity or the prevention of bigamy. However, in the Commission's opinion national law may not otherwise deprive a person or category of persons of full legal capacity of the right to marry. Nor may it substantially interfere with their exercise of the right [the Commission's emphasis].
In Hamer's case the Commission found unanimously that the applicant prisoner's right to marry had been violated by the United Kingdom government's decision to refuse him permission to do so, a view that was reinforced by the Commission's further decision in Draper v United Kingdom (1980) 24 DR 72, holding that a refusal to allow a prisoner temporary release from prison in order to marry involved interference with his article 12 right.
the disputed measure, which affected the very essence of the right to marry, was disproportionate to the legitimate aim pursued
In reaching its conclusion the ECtHR explained, at its §32, the limited power conferred on member states by the concluding words of article 12, because national laws
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… In all the Council of Europe's member States, these "limitations" appear as conditions and are embodied in procedural or substantive rules. The former relate mainly to publicity and the solemnisation of marriage, while the latter relate primarily to capacity, consent and certain impediments.
Commission authority on article 12
The Commission notes that, in the present case, the issue concerns substantive rules, the purpose of which is, inter alia, to preclude marriages of convenience between French citizens and aliens. It does not find this limitation, in itself, [scil., per se] to be contrary to Article 12 of the Convention.
Although one could wish that the matter were before us more fully, that is a fairly clear acknowledgment, albeit in general terms, that the relativist approach to article 12 left open in F v Switzerland can extend to the limitation of some marriages or alleged marriages in the interests of immigration control.
the purpose of [the rules] is to prevent marriages of convenience between Dutch nationals and aliens for immigration purposes. In this respect the Commission recalls that the Dutch immigration policy is clearly related to the economic well-being of the country, in particular to the authorities' concern, given the population density in the Netherlands, to regulate the labour market. Although in the circumstances of the present case the relevance of the statement at issue may be questionable, the Commission cannot find the limitation at issue, namely the applicants' obligation to submit a statement…to be contrary to article 12
Conclusions on the ambit of article 12
i) Although not "absolute" in nature, the right to marry is recognized as an important and fundamental right, not to be lightly interfered with. That is clear from the observations of the Commission in Hamer, and of the ECtHR in F v Switzerland.
ii) The terms of the article itself, and the jurisprudence, recognize and support national laws that ensure that "marriages" are proper and properly engaged in. Hamer and F v Switzerland are, again, authority for that approach.
iii) It might seem to follow from (ii) that it would be legitimate for states to ban any marriages of convenience, and not just those which are entered into to avoid immigration control. However, that step has not yet been taken or, rather, has not yet arisen at least in such Convention jurisprudence as we have been shown. But that part of the jurisprudence explains why, in the Commission cases reviewed above, there was regarded as legitimate not only the end, control of immigration, but also the means, prohibition of marriages of convenience.
iv) Article 12 does not confer any right to marry in a particular country, even if the parties are currently present in the country in which they wish to marry: App No 10914/84, §25 above.
v) There is no firm suggestion that a state may interfere with genuine marriages (ie marriages that are not marriages of convenience) in the interests of immigration control or of any other part of social policy. Miss Carss-Frisk argued that such interference was envisaged in two of the cases relied on by her, Application 9773/82 v UK (§ 24 above); and Application 10914/84 v Netherlands (§ 25 above). However, in the first case the applicant wished to bring his fiancée into the country to marry her in circumstances of which the Commission was plainly highly sceptical; and the second case appears to have been approached on the basis that the applicant was liable to expulsion, on good grounds, and that expulsion could not be interfered with by a claim to marry in the Netherlands rather than in Morocco. In neither case was the issue as to genuine marriage confronted in terms, or indeed at all. At the most, the cases go no further than to support the proposition enunciated in both of them that article 12 does not confer a right to marry in any particular country.
vi) If a state did institute a policy of inhibiting genuine marriage that would raise serious issues both under article 12 and under immigration law. As I have suggested in sub-paragraphs (ii) and (iii) above, inhibition of marriages of convenience can be seen as reinforcing, and not as undermining, article 12's support for "marriage". And immigration law gives rights to the spouses of persons with immigration rights for that same reason, that marriage is an institution that states should respect.
The court's approach to state policy in relation to article 12
I therefore accept the submission of Miss Carss-Frisk that the Secretary of State and Parliament are entitled to substantial deference in determining what restrictions, if any, are appropriate to impose on article 12 rights and I will apply that approach when considering the issue of proportionality to which I now turn.
To see how the judge reached that conclusion it is necessary to set out the three paragraphs that preceded it, §§ 59-62 of the first judgment:
It is common ground that the approach to this problem was summarised by Dyson LJ when he explained in Samaroo and Sezek v Secretary of State  UKHRR 1150 at §35 that he had:
"been assisted by the discussion at paragraph 3.26 of Human Rights Law and Practice (Butterworth 1999), of which Lord Lester of Herne Hill QC and David Pannick QC are the general editors. They identify the following factors: (a) the nature of the Convention right: is the right absolute or (as in the case of Article 8) does it require a balance to be struck? The court is less likely to defer to the opinion of the decision-maker in the former case than the latter. (b) the extent to which the issues require consideration of social, economic or political factors. The court will usually accord considerable deference in such cases because it is not expert in the realm of policy-making, nor should it be because it is not democratically elected or accountable. (c) The extent to which the court has special expertise, for example in relation to criminal matters. (d) Where the rights claimed are of especial importance, 'a high degree of constitutional protection' will be appropriate. The European Court of Human Rights has recognised as being of especial importance rights to freedom of expression and access to the courts"
61. As to factor (a) in this formulation, there has been a dispute as to whether article 12 is an absolute right or a right which requires a balance to be struck. In my view, article 12 is not an absolute right because, as I have explained in paragraphs 50 to 57 above, the last eleven words of article 12 entitle member states to strike a balance because, as was explained in Hamer v United Kingdom, at §62, those states "may also lay down rules of substance based on recognised considerations of public interest"
62. Moving to factor (b), issues of immigration and sham marriages are classic examples of areas, which require consideration of social and also political issues and in these matters the legislature and the executive are entitled to substantial deference because they, unlike the judiciary, are the designated experts in the realm of policy-making in these fields. The remaining factors show that the Secretary of State and the legislature are entitled to substantial deference because as to factor (c), the courts do not have any special expertise on immigration policy and in respect of factor (d), the right to marry, although an important fundamental right, does not qualify as one of "the rights claimed ... of especial importance" . Indeed it is significant that in Samaroo, at §36, Dyson LJ stated that the article 8 right to family life is "not regarded as a right which requires a high degree of constitutional protection". There is a substantial overlap between articles 12 and 8 as they both concern family life and if, as I consider to be the true position, article 8 is not one of "the rights claimed ... of especial importance", then article 12 must be also be regarded in a similar way.
Parliament is charged with the primary responsibility for deciding whether the means chosen to deal with a social problem are both necessary and appropriate. Assessment of the advantages and disadvantages of the various legislative alternatives is primarily a matter for Parliament…. The court will reach a different conclusion from the legislature only when it is apparent that the legislature has attached insufficient importance to a person's Convention right. The readiness of a court to depart from the views of the legislature depends upon the circumstances, one of which is the subject matter of the legislation. The more the legislation concerns matters of broad social policy, the less ready will be a court to intervene.
Having quoted that passage, Silber J said:
The section 19 regime concerns the need to prevent sham marriages taking place and this purpose can properly be classified as a matter of broad social policy. Thus in accordance with Lord Nicholls' guidance, the courts should be "less ready" to intervene.
But that puts the emphasis in the wrong place. Immigration is certainly a matter of broad social policy, in which the courts will indeed be very hesitant to differ from the judgement of the legislature and the executive. But what is at stake in this case is the Convention right to marry. In deciding whether the scheme adopted in relation to marriages that do or might affect immigration control is lawful in Convention terms, the court is under a duty, as Lord Nicholls said that it is, to assess whether the scheme attaches sufficient importance to that Convention right.
The analysis of Silber J
(i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objectives are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.
Within that guidance, under item (i) the judge concluded, at §73 of the first judgment, that the legislative object of preventing sham marriages entered into so as to avoid immigration control was sufficiently important to justify limiting the article 12 right. I would respectfully agree, and the jurisprudence of article 12, summarised in §29 above, justifies a statement in those general terms; though for the reasons set out above I consider that that jurisprudence only supports a more limited interference with the article 12 right than the judge may have envisaged.
The role of discrimination
The judge's conclusion on proportionality
The criteria which it has been suggested will be applied by the Secretary of State in deciding whether or not to approve of marriage in an individual case will not be based on the assessment of the genuineness of a marriage… The length of time for which a person has leave to remain in the UK, for example, has nothing to do with the genuineness or otherwise of any marriage into which he or she proposes to enter. This criterion will effectively operate as a statutory presumption that a marriage involving a person with less than six months leave to stay is not a genuine marriage. But there is no necessary [or] logical connection between the genuineness of a proposed marriage and the length or time which a person has leave to stay in the United Kingdom
It was the blanket interference with that category of marriage that, despite his generous view of the ambit of possible derogations from article 12, the judge thought to be disproportionate. The basis of his reasoning can be found at many stages of his judgment, but I would venture to cite, as an example, §85 of the first judgment:
A third reason why I have concluded that the new section 19 regime is not rationally connected to the legislative objectives of avoiding sham marriages is that it arbitrarily fails to take into account many factors which might be relevant to considering whether a proposed marriage is a sham, such as clear and corroborated evidence that the parties have enjoyed a loving relationship over a number of years during which they might have had children and might have bought a house together. It is difficult to see why the new regime, which ignores factors such as this, can be "rationally connected" to the legislative aim of avoiding sham marriages. It is noticeable that there is a marked difference between the section 19 regime and the provisions for preventing sham marriages which were the subject of the decisions in Sanders v France 87-B DR 160 and in Klip and Kruger v The Netherlands 91-A DR 66, in which the countries concerned have systems where an investigation takes place in which there is a basis for suspecting that the marriage is a sham so that the authorities thereafter would only prevent marriages taking place which they can show to be sham marriages. In other words, those countries carry out an investigation and then reach a fact sensitive decision on whether the particular marriage is a sham marriage.
I have no difficulty in accepting that in suitable instances it is open to Parliament, when Parliament considers the public interest so requires, to decide that compliance with certain formalities is an essential prerequisite to enforcement of certain types of agreements. This course is open to Parliament even though this will sometimes yield a seemingly unreasonable result in a particular case. Considered overall, this course may well be a proportionate response in practice to a perceived social problem.
But Lord Nicholls was there saying that a scheme whose objective was to secure the Convention rights of borrowers should not be unshipped just because it affected some moneylenders whose conduct was not objectionable in Convention terms. Quite apart from the considerable difference in terms of social justice and policy between the position of a moneylender and the position of a person who wishes to enter into a genuine marriage, it puts the argument the wrong way round simply to adapt Lord Nicholls' words to the present case. Under the Secretary of State's scheme it is persons who legitimately assert Convention rights who are prevented by the broad brush terms of the scheme from exercising those rights; and not, as in Wilson, third parties who must suffer in order to secure the exercise of Convention rights by others. Once it is seen that the scheme inhibits the article 12 rights of persons who are not the legitimate target, in Convention terms, of any restriction of Convention rights, then the judge's criticism of the scheme is unavoidable.
It is important to stress the very far-reaching adverse consequences for a person who requires a COA but does not receive it especially those who are caught by the provision for automatic refusal. The expectation for this group of people is that either the couple should travel abroad and marry, and then for the partner requiring entry clearance to obtain this from abroad on the basis of his or her marriage; or for the individual requiring entry clearance to travel abroad (with or without his or her fiancée) to obtain entry clearance, from abroad, on the basis of his intended marriage in the UK. The compassionate circumstances may be seen to be applicable where neither expectation is reasonable. Those of us who sit in the Administrative Court for long periods are now very familiar with the delays in the immigration system which are now likely to lead to very substantial delays in handling and resolving applications to enter the United Kingdom from those who have gone abroad to marry.
Further considerations as to the proportionality of the scheme
Conclusion on Case No C4/2006/1469
The decision on Mr Baiai's application: case C4/2006/1621
Lord Justice Lloyd:
Lord Justice Waller: