JCWI Press Releases

Wednesday 23 May 2007

"Sham" marriage controls breach human rights, rules Court of Appeal

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

The Court of Appeal today ruled against the Home Secretary to uphold the right of non-European nationals who are in genuine relationships to marry in the UK irrespective of immigration status. The Joint Council for the Welfare of Immigrants was an intervening party in the MB (Algeria) case against the so-called "sham" marriage provisions.

Under rules introduced in 2005, non-EEA nationals with limited leave to remain have to show they have a fiancé visa, or have the Home Office's permission to marry, before being married in a legally recognised ceremony in the UK. Under the rules as originally introduced, the Home Office could refuse people with less than six months' valid leave to remain the certificate of approval needed to demonstrate permission to marry to a registrar. The rules effectively treated those with less six months' valid leave as seeking to enter marriages of convenience even where they were able to demonstrate, if given a chance, that they had no such intention.

In a judgment of the Court of Appeal handed down today Lord Justice Buxton, sitting with Lord Justices Lloyd and Waller, ruled that the scheme was disproportionate to the objective of preventing marriages of convenience for immigration benefit because it

• discriminated against non-Anglicans by exempting marriages under banns in Anglican churches,
• nd was not adequately directed to identifying real marriages of convenience rather than preventing wide categories of persons from marrying on the assumption that these were marriages of convenience

In the judgment of the Court Lord Justice Buxton said:

"The objection inherent in the scheme that it inhibits marriage on grounds of immigration status rather than by a reliable consideration of the genuineness of the marriage applies just as much in the case of an illegal entrant…as in the case of persons with very limited permission to be here."

The ruling states that the Home Office is within its rights to prevent marriages of convenience for immigration benefit but it will need to legislate in a proportionate matter to do so.

Habib Rahman, Chief Executive of JCWI,said:

"This judgment today is a vindication of the genuine intentions of many migrants and their partners who have been prevented from marrying in a legally recognised ceremony by these cruel rules. The Lord Justices have reminded the Home Secretary that all people in the UK are human beings with rights whatever their immigration status. Given that this decision extends rather than overturns the High Court decision we urge the Home Office to abide by this decision and not proceed to appeal."

In the High Court hearing last year JCWI argued that

• the rules introduced as a result of Section 19 of the Asylum and Immigration (Treatment of Claimants) Act 2004 breach people's right to marry
• and have a discriminatory effect under the European Convention on Human Rights given the exception made under the rules for people marrying in the Church of England
• and that immigration status is not in itself any indication of intention to marry for immigration benefit

Mr Justice Silber in the High Court decision ruled that the Home Office controls were not sufficiently focussed on identifying and preventing sham marriages as opposed to genuine marriages. He agreed with concerns expressed by JCWI and the Parliamentary Joint Committee on Human Rights - including the concern that the rules could have a potentially discriminatory effect on certain religious groups, given the exception made for Anglicans. However he limited his ruling to non-EEA nationals with leave to remain in the UK.