JCWI Press Releases

Monday 10 April 2006

High Court challenge to 'sham' marriage provisions succeeds

Media contact: Rhian Beynon, Communications Officer
Telephone: 020 7553 7464/079102 48417

A High Court judge has ruled today (Monday) that provisions to prevent "sham" marriages are incompatible with the Human Rights Act because they infringe people's rights to marry and found a family, and are discriminatory. He has also criticised the Home Office practice of making non-EEA nationals, who wish to marry in this country, leave the UK before they are allowed to make their case for marrying a partner here.

JCWI, which has been campaigning against the provisions since 2004, calls on the Secretary of State to repeal the sham marriage provisions in light of the ruling.

JCWI intervened in the High Court challenge which consisted of three couples' cases: an undocumented non-EEA national wishing to marry an EEA national legally resident in the UK; two persons granted exceptional leave to remain; and a pregnant failed asylum seeker wishing to marry an individual granted refugee status in the UK. All the couples were prevented from, or suffered delay in, marrying because they fell foul of Section 19 of the Asylum and Immigration (Treatment of Claimants) Act 2004, which came into force in February 2005.
JCWI Chief Executive Habib Rahman hailed the judgment:

"Our legal advisers have witnessed the heartbreak of many genuine couples, including UK citizens from ethnic minorities, who have been prevented from marrying by Section 19. This ruling vindicates their wish to marry their partner of choice in the UK. We urge the Home Office to take note of this ruling and not to delay in repealing this cruel and discriminatory regime."

Section 19 enables the Home office to prevent non-EEA nationals with less than six months' leave to remain in the UK from getting legally married in a civil ceremony in this country unless they obtain the special permission of the Home Secretary at a cost of £135 per person. It applies whether a non-EEA national wishes to marry another non-EEA national, or a UK, or EEA, national who is fully entitled to residence. However an exception is made for couples wishing to marry in the Church of England who do not need to obtain permission from the Home Secretary.

While the Honourable Mr Justice Silber said there was evidence of sham marriages and the Government was within it rights to try to combat them, he criticised Section 19 because:

• He agreed that there is no necessary or logical connection between the genuiness of a proposed marriage and the length of time which a person has leave to stay in the United Kingdom
• It is difficult to see what basis there is for presuming that all marriages in religions other than the Church of England are sham marriages
• It fails to take into account a number of factors which could be relevant to considering whether a proposed marriage is sham, such as evidence of a loving and lasting relationship
• Under section 19 the only factors considered to be relevant in determining a potential sham marriage in the UK are immigration status and length of outstanding application or appeal
• The regime does not allow those without the necessary leave to remain any opportunity to make their case for getting married without first leaving the UK.

Justice Silber said that the Section 19 regime "affects the Article 12 (ECHR) rights of substantially many more people than it would be necessary to achieve the legislative purpose of achieving sham marriages."

He added "I am concerned by the requirement for the applicants to have to leave the UK for a form of scrutiny which could just as easily take place in the UK without the disruption and expense caused by the need for the parties to have to go abroad, and to apply at which time the genuineness of the marriage would have to be scrutinised."

Notes to editors

1. The challenge was listed THE QUEEN on the application of Mahmoud BAIAI & Izabela TRZCINSKA (CO/1460/2005)Leonard BIGOKU & AGOLLI (CO/6898/2005) Melek TILKI (CO/7442/2005 and-THE SECRETARY OF STATE FOR THE HOME DEPARTMENT and-JOINT COUNCIL FOR THE WELFARE OF IMMIGRANTS

2. JCWI was an intervening party in this case. JCWI's counsel were Richard Drabble QC and Eric Fripp.

3. A sham marriage is a marriage which is entered into solely for the purposes of deriving an immigration benefit

4. The European Convention on Human Rights (ECHR), Article 12, states; "Men and Women of marriageable age have the right to marry and found a family and to found a family according to the national laws governing the exercise of this right."

5. ECHR Article 14 states "The enjoyment of the rights and freedoms set forth in this 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."

6. Under section 19 of the Asylum and Immigration(Treatment of Claimants) Act 2004, non-EEA nationals who cannot produce documentation to a special marriage registrar evidencing permission to be in the UK for the purposes of marriage are directed to apply for permission to a marry in a civil ceremony from the Home Secretary. Non-EEA nationals with less than three months' leave to remain on a visa of no less than six months, are normally refused permission to marry unless they can show that an initial decision on their immigration application or the outcome of appeal against such decision is 18 months' outstanding.