Posted on January 05th 2011
O’DONOGHUE AND OTHERS v. THE UNITED KINGDOM  The European Court of Human Rights (Fourth Section), Application no. 34848/07The government’s ill-fated attempts to control the ability of third-country nationals to marry in the UK suffered a further, and probably final set-back in the European Court case of O’Donoghue -v- UK released last month. From 2005 the law has required most immigrants without settled status in the UK to apply for a Certificate of Approval to marry, the notable exceptions being EEA nationals and those who marry according to the rites of the Church of England. However the scheme was repeatedly revised and relaxed, following a string of court defeats between 2006 and 2008. The first version of the scheme simply required applicants to have a prescribed amount of leave to remain, and if you had enough leave, you would normally get permission to marry.If you did not have the prescribed amount of leave, you would almost always be refused. The second version of the scheme allowed those with insufficient leave to put forward evidence showing that their relationship was genuine, and the third version extended that to allow even those with no leave to get permission provided they could prove their relationship was genuine. Until April 2009 a fee of £295 was payable for each applicant, and there was no power to waive this even in compassionate cases. Leave to remainO’Donoghue concerned the case of Mr Iwu, a Nigerian national living in Northern Ireland who wished to marry his partner Ms O’Donoghue. At the time they became engaged in May 2006 (when the second version of the scheme was in force) Mr Iwu had no leave to remain, and as such he did not qualify for a Certificate of Approval. After the third version came into force in June 2007, he did apply, but because he had asked for a waiver of the £295 fee his application was returned as invalid. At this point he appealed to the European Court. Although Mr Iwu did eventually get permission to marry in July 2008, having borrowed the money from friends, the Court decided to rule on the questions raised anyway. The Court agreed with the domestic courts that a scheme requiring immigrants to apply for permission to marry was not in itself objectionable; the government was entitled to have some mechanism to prevent sham marriages. However this scheme was objectionable, and unlawful, on many levels. Damages paid Perhaps most fundamentally, none of the different versions of the scheme was actually directed at preventing sham marriages. Under the first version there was simply no enquiry about the genuineness of the relationship, and under the later versions those with a sufficient amount of leave would qualify even if their marriages were a sham. In addition, the first two versions of the scheme contained a blanket ban in respect of a whole class of immigrant (those without leave) regardless of the genuineness of their relationship. The Court held that this “general, automatic and indiscriminate restriction” undermined the very essence of the right to marry. And finally the Court agreed that the fee of £295 was so high that for many people, including Mr Iwu, it acted as a bar to them exercising their right to marry. For all of these reasons, the Court held that the scheme breached Mr Iwu’s right to marry under Article 12 of the European Convention. The Court also found that the scheme breached the Article 14 guarantee of freedom from discrimination, on the basis that by exempting Church of England marriages it discriminated on grounds of religion. Having upheld Mr Iwu’s complaints, the Court ordered the government to repay the £295 application fee. In an unusual move, it also ordered the payment of 8,500 Euros in damages for the emotional distress caused by having unlawfully interfered with Mr Iwu’s right to marry between his engagement in May 2006, and the eventual grant of permission to marry in July 2008. The Court decided toaward this unusual remedy because of the government’s unjustifiable failure to mitigate the discriminatory aspects of the scheme, despite having accepted that it was discriminatory following the successful challenge to the first version of the scheme in April 2006. Analysis In light of the government’s decision to abolish the fee in April 2009, and its decision to abolish the whole scheme byspring 2011, O’Donoghue itself will probably not have a significant ongoing effect on the right of immigrants to marryin the UK. However anyone refused a Certificate of Approval should certainly be seeking legal advice, as should anyone who was placed in financial difficulty by paying the £295 fee. The case also raises the prospect that those whose right to marry was impeded or delayed by the scheme, every version of which was inconsistent with Article 12 and Article 14, may seek damages in compensation for the distress they have suffered.