R (Quila) v Home Secretary [2011] UKSC 45

Human rights, particularly the right to respect for family life under Article 8 of the European Convention on Human Rights, protect individuals' freedom to live with their families without undue state interference. This right is integral to maintaining close familial bonds.

Immigration rules, such as those restricting spouses under 21 from entering or remaining in the UK, can interfere with the right to family life.

• These rules aim to prevent forced marriages but may raise concerns about their impact on genuine relationships.

• The justification for such interference depends on whether it serves a legitimate aim, like deterring forced marriages, and whether it is proportionate.

• Balancing these concerns with the right to family life requires careful consideration.

The Human Rights Act 1998 and various amendments to the Immigration Rules govern these issues, reflecting efforts to balance immigration control with the protection of human rights.

In the first case, Diego Andres Aguilar Quila (Husband) Amber Aguilar (wife), (“Claimants”) were an 18-year-old Chilean man who had entered the United Kingdom on a student visa and a 17-year-old British citizen.

• The couple married in the United Kingdom, and the husband applied for leave to remain in the UK.

• At the time, rule 277 of the Statement of Changes in Immigration Rules (1994) (HC 395), as amended, prohibited granting leave to remain as a spouse if either party to the marriage was under 18.

• The Claimants were aware that this rule was set to be amended by the Statement of Changes in Immigration Rules (2008) (HC 1113), which would raise the minimum age to 21 to deter forced marriages.

• The Home Secretary refused the husband’s application on the grounds that the wife had not yet turned 18 and there were no exceptional, compassionate circumstances to justify a discretionary grant.

• After the wife turned 18, the husband requested a new decision, but the Home Secretary again refused the application, citing the newly enforced minimum age of 21.

• With an unexpired student visa, the husband had no right to appeal this refusal, prompting the Claimants to seek judicial review.

• The judge dismissed their claim, ruling that the amended rule 277 did not interfere with their right to respect family life under Article 8 of the European Convention on Human Rights.

In the second case, Shakira Bibi (wife), Suhyal Mohammed (Husband) (“Claimants”) were an 18-year-old Pakistani woman and an 18-year-old British citizen who married in Pakistan.

• The wife’s application for entry clearance was refused under amended rule 277.

• The Claimants were denied permission to pursue a judicial review.

• However, the Court of Appeal later allowed appeals in both cases, finding that the Home Secretary’s application of rule 277 constituted an unjustified interference with the claimants’ right to respect their family life under Article 8.

The court, dismissing the appeals (with Lord Brown of Eaton-under-Heywood JSC dissenting), held that the refusal by the Home Secretary to allow the foreign spouses to reside in the United Kingdom with their British citizen partners, with whom they had recently entered into consensual marriages, constituted an interference with the claimants' family life under Article 8.1 of the European Convention on Human Rights.

• This interference was permissible only if justified under Article 8.2.

• The court recognized that the amendment to rule 277 had a legitimate aim of protecting individuals from being forced into marriage, was in accordance with the law, and was rationally connected to the objective of deterring forced marriages.

• However, the court found that the number of forced marriages deterred by the amendment was highly debatable and was vastly exceeded by the number of genuine, unforced marriages obstructed from developing for up to three years.

The court noted that the Home Secretary had not addressed this imbalance in the materials published prior to the amendment or in the evidence presented to the court.

• The Home Secretary had not made a judgment on the scale of the imbalance, which was necessary to determine whether the amendment was proportionate to the legitimate aim it sought to achieve.

• As a result, the Home Secretary failed to establish that the amendment was no more than necessary to accomplish her objective and that it struck a fair balance between the rights of parties in unforced marriages and the interests of the community in preventing forced marriages.

The court concluded that the Home Secretary had not justified the interference with the claimants' rights under Article 8.

• The court affirmed the decision of the Court of Appeal, indicating that the Home Secretary, in applying the amendment to rule 277 to unforced marriages, was unlikely to avoid infringement of Article 8 in the future, leaving her with an unenviable decision regarding its continued operation.

The case addresses the UK government's rule raising the minimum age for marriage from 16 to 18 for immigration sponsorship, aimed at preventing forced marriages.

• This rule, while well-intentioned, was challenged on grounds that it infringed upon the right to family life.

The court recognized exceptions for exceptional compassionate circumstances, such as pregnancy or military personnel, which shows a balance between strict policy and individual needs.

• Unlike the R (Baiai) case, which focused on direct barriers to marriage, Aguilar Quila involved indirect impacts on family life, emphasizing the nuanced approach needed in human rights cases.

The decision highlights the challenge of balancing immigration control with human rights protections. It shows the complexity of ensuring policies designed to prevent abuses do not unduly infringe on fundamental rights.