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British Court Overturns UK Govt's Non-EU Under 21 Spouses Ban

20 Oct 2011

By Charles Kelly 

The British Government's ban on non-EU foreign spouses under the age of 21 coming to the UK has been ruled unlawful by top judges following a challenge backed by the Joint Council for the Welfare of Immigrants (JCWI).

The ruling by the Supreme Court is a major blow to an immigration policy designed to stop forced marriages, the BBC reports.

The ban, introduced by Labour in 2008, meant a foreign partner from outside the EU could not join their partner in the UK if they were under 21 years old.

The court said that the rule was unjustified because it interfered with the human rights of couples.

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Immigration minister Damian Green said the judgement was "very disappointing" because the policy had been judged elsewhere in Europe to be lawful.

The case was brought by two couples who said that the immigration rule had unlawfully interfered with their right to a private and family life - Article 8 of the European Convention on Human Rights.

Briton Amber Aguilar and her husband, Diego, from Chile, were under 21 when the rule was introduced - and Diego was banned from staying with his wife in the UK once his student visa had expired.

"On any view it is a sledgehammer but she has not attempted to identify the size of the nut"

Lord Wilson, Supreme Court

The couple chose to live initially in Chile, before moving to Ireland, rather than be apart. As a consequence, Mrs Aguilar lost her university place.

Outside court, Mrs Aguilar told the BBC she and her husband had spent three years fighting for the right to be together.

"I basically felt like I'd been exiled from my country and in forcing him to leave they'd also forced me to leave," she said.

The second case involved Suhyal Mohammed, a British man of south Asian origin, who was banned from bringing his young Pakistani wife Shakira Bibi to live with him in the UK.

The couple had come together through a traditional arranged marriage in which both families play a role in finding a suitable partner.

In neither couple's case was there any suggestion that the marriages were forced.

The High Court had initially backed the home secretary's power to deny entry or settlement visas to spouses under the age of 21.

But declaring the rule incompatible with the couples' rights, Lord Wilson said in the Supreme Court's judgement the government had not shown a good case for interfering with the right to private and family life.

"I would acknowledge that the [change in rules] is rationally connected to the objective of deterring forced marriages," he said.

"But the number of forced marriages which it deters is highly debatable.

"What seems clear is that the number of unforced marriages which it obstructs from their intended development for up to three years vastly exceeds the number of forced marriages which it deters.

"On any view it is a sledgehammer but [Home Secretary Theresa May] has not attempted to identify the size of the nut.

"She fails to establish that the interference with the rights of the respondents under Article 8 [of the human rights convention] is justified."

One of the five justices, Lord Brown, ruled in the government's favour. He said: "The extent to which the rule will help combat forced marriage and the countervailing extent to which it will disrupt the lives of innocent couples adversely affected by it is largely a matter of judgement. Unless demonstrably wrong, this judgement should be rather for government than for the courts."

The court's judgement means the Home Office will need to either scrap the rule or rewrite it so that it is compatible with rights.

But Immigration minister Damian Green said: "This is another very disappointing judgement, which overturns a policy that exists and is judged to be consistent with the ECHR in other European countries.

"The judges themselves agreed increasing the marriage visa age had a legitimate aim.

"We believe this decision will put vulnerable people at risk of being forced into marriage. We will come forward with our response in due course."

The Joint Council for the Welfare of Immigrants (JCWI), which represented Amber and Diego, estimates the ruling could allow up to 5,000 foreign spouses to settle in the UK every year.

Habib Rahman of the JCWI said: "This was a law introduced on the hoof, which had no discernible effect on forced marriage, but infringed on the rights of UK citizens to live in the UK with their partners.

"We are delighted to see it consigned to the scrap heap of misguided legislation." Source: BBC

The judgement comes less than a month since the UK Border Agency has confirmed in a letter to ILPA that it will be looking at putting regulations to reflect the Zambrano judgment in place ‘before the close of 2011 at the earliest'.

The UK Border Agency interprets the Zambrano judgment to apply to: a) third country nationals upon whom British children are dependent and b) third country nationals upon whom a British citizen adult is dependent. It takes the view that the judgment does not apply in cases where dependency is simply financial.

If you need any immigration advice or help with Sponsorship or Work Permits, Visa, ILR/Settlement, Citizenship, dependant visa or an appeal against a refusal please email: info@immigrationmatters.co.uk or visit http://www.immigrationmatters.co.uk/

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