The Hon Mr. Justice Burnett :
- This rolled-up application for permission to apply for Judicial Review came before me first on 30th October 2009 but for various reasons was not ready for hearing. I adjourned the matter until 9th November 2009 to enable the Secretary of State for the Home Department ("SSHD") to file further evidence by Friday 6th November 2009 and for the claimant to adduce further evidence and produce additional authorities.
- On 4th March 2009 the SSHD refused the claimant's application for leave to remain in the UK as the spouse of a British Citizen. That decision was reaffirmed on 15th May 2009. These proceedings were lodged on 2nd June 2009. Although at first blush the challenge appears to be to an individual set of decisions taken by the SSHD, what underlies it is the contention that the immigration policy relating to marriages of those under 21 is unlawful. The illegality is said to arise in a number of different linked ways. First, the claimant contends that the SSHD's policy is irrational and thus not permitted by the rule making power found in Section 3(2) of the Immigration Act 1971. Secondly, it is suggested that the policy is in conflict with Article 8 of the European Convention on Human Rights ["ECHR"] because it is disproportionate. Thirdly, it is said that the policy is discriminatory for the purposes of Article 14 ECHR when read with Article 8 because it impermissibly discriminates against those aged 18, 19 and 20. It is further suggested that the SSHD's decision not to exercise discretion in favour of the claimant was irrational and that on the facts of this case the decision amounts to a breach of Article 8 of the ECHR in respect of both the claimant and his wife.
- With effect from 27th November 2008, paragraph 277 of the Immigration Rules (HC 395) was amended to read as follows:-
"Nothing in these Rules shall be construed as permitting a person to be granted entry clearance, leave to enter, leave to remain or variation of leave as a spouse or civil partner of another if either the applicant or sponsor will be aged under 21 on the date of arrival in the UK or (as the case may be) on the date on which the leave to remain or variation of leave would be granted."
- The important change effected by that paragraph was that the qualification age of both parties was raised from 18 to 21. The claimant was caught by that change because he, a national of Chile, had married his British wife very shortly before the change in the rule when he was 18 and she was only 17. It has not been positively averred by the claimant that the previous rule, which required both parties to be 18, was unlawful. That rule had itself followed changes which raised the ages from 16 to 18. Neither does Mr. Jacobs, who appears on behalf of the claimant, accept that the rule was lawful. It is the increase in the age to 21 from 18 that he seeks to challenge and submits that it is unnecessary for him to address the question whether what came before was lawful.
- The rule change made in November 2008 formed part of the policy of the SSHD to tackle forced marriages. Those are marriages where one or both of the parties are unwilling participants coerced into marriage. Such marriages must be distinguished from arranged marriages. The policy and rule change has nothing to do with arranged marriages.
- The decision to refuse the claimant leave to remain was taken solely on the basis that his wife, who is the interested party in these proceedings, was too young (17) to meet the age requirement found in paragraph 277 at the date on which he made his application.
- The claimant is a national of Chile who was born on 12th July 1990. His wife, the interested party, Amber Aguilar, is a British national born on 25th April 1991. They met in early 2006 at a time when the claimant was living in London with his parents. The claimant and his family returned to Chile in June 2008 but he re-entered the UK on 17th August 2008 with leave as a student. His leave was to expire on 3rd August 2009. The visa was granted to enable him to complete an NVQ course in electrical installation at Lambeth College, which in due course he did. The evidence suggests that in September 2008 the claimant and Amber Jeffery decided to marry. Their thinking included an intention that the claimant would apply for leave to remain as the spouse of a British national when Amber reached her 18th birthday in April 2009. They became aware of the proposed change in policy. On 22nd November 2008 knowing that the age would be increased very shortly thereafter to 21, the claimant and Amber Jeffery married. They appreciated that the claimant would not qualify under the new Rule and that in November 2008 he did not qualify under the existing Rule because his wife was only 17.
- The change in the terms of paragraph 277 had been heralded in a consultation process that started in December 2007. Much information about the proposed changes was available on the UK Border Agency ["UKBA"] website and it is not in doubt that the claimant and his wife became aware of those changes in the autumn of 2008. On 23rd November 2008 the claimant and his wife wrote to the SSHD. They referred to the impending increase in the age limit which was due to come into effect on 27th November. Their request was that leave to remain be granted to the claimant on an exceptional basis. The letter noted that if the application were refused, the claimant and his wife would have to move to Chile for 3 years and that, in particular, his wife "does not want this". The letter noted that they were living together at Amber's parents' house. Amber was applying for a university place at London University. Financial provision was being made for them by her parents. The letter concluded as follows.:-
"The big problem that we have is that we were going to apply for a marriage visa once Amber was 18 on 25th April 2009. We cannot now wait until that date to apply for the visa, as we shall both need to be 21 after 27th November. So, we are sending you this application now, even though we do not meet just one requirement Amber is still only 17 years and 7 months.
We are both asking you to make an exception for us. If the marriage visa is refused, I will obviously have to keep my promise to return to Chile at the end of my studies. Amber and I love each other very much and cannot live apart that is why we got married yesterday. That would mean that we would have to go and live in Chile for 3 years until Amber is 21. Amber does not want this she would not be able to attend university in this country.
We feel that we have been very unlucky in getting caught up in this change to the law and cannot see a solution except to ask you to treat our case sympathically. Amber is a British Citizen, and I have lived here for more than 6 years and so feel completely British in my ways now."
- The SSHD determined the application in a decision dated 4th March 2009. She declined the claimant's application on the ground that Amber did not meet the requirements of paragraph 277 as they stood at the time of the application. That is, that at the time of the application she was under 18. Paragraph 277 as it then stood required the sponsoring party to be 18 or more. The letter from the SSHD also confirmed that Article 8 had been considered but the conclusion was that there was no beach of Article 8.
- On 1st May 2009 the Joint Council for the Welfare of Immigrants ["JCWI"] wrote a letter before claim on behalf of the claimant and his wife giving notice of a proposed challenge to the decision dated 4th March 2009. Although the decision of 4th March 2009 was identified as the target of the proposed claim the basis of the claim was identified as the increase in age from 18 to 21. It was additionally suggested that the SSHD should have exercised discretion in the claimant's favour and emphasised that the rationale behind the new policy, namely to discourage forced marriage, had no application to the facts of the instant case. That last point has not been disputed by the SSHD. The evidence before the SSHD and before this court demonstrates beyond doubt that both the claimant and his wife are willing parties to the marriage. This is a love match. The JCWI invited the SSHD to reconsider her decision dated 4th March 2009 now that Amber Aguilar was 18 years old. In essence what was being requested was that the Secretary of State for the Home Department should apply the old paragraph 277, which by May 2009 the claimant and his wife would have satisfied, and accept that the increase in age to 21 introduced the previous November was unlawful.
- Despite the claimant's desire to focus on the increase in the age limit to 21 (see paragraph  above) it is significant that no suggestion was made that the old rule was irrational, disproportionate or discriminatory. Were it possible for the claimant to show that the change of the rule from its starting point (i.e. 16) to 18 was irrational or disproportionate, that would provide a direct line of challenge to the decision made in March 2009 under the old paragraph 277. So too would an argument founded on the proposition that the old rule unlawfully discriminated on grounds of age against those under 18, as was the claimant's wife.
- A considerable amount of material was attached to the letter of 1st May 2009. That material confirmed that the claimant's parents in law would provide substantial financial support by way of a lump sum of £10,000 and an income of £500 per month until the claimant and their daughter were financially independent. There were statements from both the claimant's and his wife's parents expressing their support for the marriage. There was also a statement from Amber Aguilar herself. In that statement she explained her ambition to be a modern languages teacher. Both her parents are modern languages teachers, one now a head teacher and the other a deputy head teacher. Her plan was to do a four year BA honours degree in French and Spanish followed by the post-graduate certificate of education. Subject to A level results, Amber Aguilar had secured a place at Royal Holloway College, London to read French and Spanish commencing in the autumn 2009. She is obviously academically gifted.
- In due course Amber Aguilar secured the necessary A level results which entitled her to take up her place at Royal Holloway College. The statement she supplied to the SSHD in May 2009 included details of her researches relating to the availability of language courses at universities in Chile. Those researches suggested that no comparable degree course was available. She identified the dilemma she faced in the following terms:-
if Diego is not granted a marriage visa, I will have no choice but either to live with him in Chile and not start university until I am much older, or to stay in the UK to attend university but live apart from him, which we absolutely do not want. The financial implications of having to spend money on air fares to see each other at holiday times would be very serious for us, probably making it impossible for us to see each other more than once a year. This would make us too miserable and would seriously affect the quality of our family life together. I would simply not be able to start studies until 21, delaying our chances of enjoying economic well-being for several years."
There are clearly a number of assumptions underlying those sentiments. The first is that Amber Aguilar had not contemplated doing a different degree in Chile. The second is that neither she nor the claimant would use monies apparently available to them, which might be augmented by the claimant's earnings in Chile, to ensure they would spend the academic vacations together.
- The SSHD responded to the letter of claim on 15th May 2009. The substance of the decision contained in that letter is as follows:-
"The Rules are very clear that a person and their spouse must be over 18 at time of application. The Rules also state that nothing may be construed in order to grant someone leave where the spouse or applicant are under the age of 18. At the time your client's application was submitted and considered their spouse was aged 17. This is something your client was aware of as per their letter dated 23 November 2008
Your client was clearly aware of the requirement that their application would not meet (sic). In view of this your client's application was refused correctly according to the Rules.
In addition you have stated that your client is not subject to the new policy on the marriage age of 21. I can confirm that your client is subject to this requirement should they make a new application for leave under the marriage category. The change of the marriage age from 18 to 20 (sic) was necessitated following investigation into forced marriages. In view of the seriousness of the issue of forced marriages we do not feel it is appropriate for this age limit to be altered.
You have stated that your client is being discriminated against on the basis of their spouse's age. We do not understand how your client can claim discrimination when the age limit requirement is set out in the Immigration Rules. Your client was clearly aware of this as they have stated as such (sic) in their letter dated 23 November 2008. Therefore they would have been aware that their application was going to be refused.
Furthermore you have claimed that our decision breaches Article 8 of the Human Rights Act. There is no reason provided by you as to why this would be and why your client could not return to Chile with their spouse and continue their family life over there. Therefore Article 8 is not breached by our refusal.
The Secretary of State's policy is not to exercise discretion unless there are clear exceptional compassionate circumstances which have not previously been considered and which merit the exercise of discretion outside the Immigration Rules."
These proceedings were commenced on 2nd June 2009.
- Further evidence concerning the personal position of the claimant and his wife has been put before the court. The claimant returned to Chile with his wife on 31st July 2009. He is to be commended for complying with the terms of his leave to enter. Both have been living with the claimant's parents since their return to Chile. A statement from Amber Aguilar speaks of her feelings of isolation. She is away from her family and friends. She is very disappointed that she has been unable to take up her place at Royal Holloway College. In a statement of 8th October 2009 she suggests that she has stark choice. Either to return to the UK next September to continue her studies with the consequence of separation from her husband or defer her degree course until she is 21. Further information has been placed before the court concerning the availability of French and Spanish degrees in Chile. The British Council has identified universities in Chile at which French is taught. Mr and Mrs Jeffery, themselves French and Spanish teachers, have explored the nature of the courses and indicate that they are very different from the type of degree that is available at Royal Holloway College. In particular, therefore, it is their opinion that none of the courses identified would equip their daughter to go forward to undertake the teacher training course with a view to teaching Spanish and French in English secondary schools. I am not in a position to resolve the conflict between the evidence provided by the British Council and that provided by Mr and Mrs Jeffery and their daughter. Still less am I able to pass an opinion on the quality of degree courses available in Chilean universities. What can be drawn from the totality of evidence before the court is that Chilean degree courses would not put Amber Aguilar in as good a position as would the degree from Royal Holloway College to enable her to achieve her current ambitions.
- Evidence explaining the underlying policy and its objectives is available from a number of public documents, augmented by evidence from Nicola Smith, a Deputy Director of Immigration Policy and Head of the Permanent Migration Team at UKBA. In a statement dated 30th October 2009 she summarises the nature of forced marriage:
"12. Forced marriage is recognised in the UK as a form of violence which can lead to domestic/child abuse and a serious abuse of international human rights. The Home Office Working Group 2000 (A Choice By Right) defined forced marriage as 'a marriage in which one or both spouses do not (or, in the case of some adults with learning or physical difficulties, cannot) consent to the marriage and duress is involved'. Duress exerted in forcing an individual into marriage can involve physical duress (threats of violence or violence carried out against the individual), or emotional duress (for example, making the individual feel as though they are bringing shame on their family by not entering the marriage), psychological duress, financial duress and sexual duress. Forced marriages can happen to both women and men, although most cases involve young women and girls aged between 13 and 30. There is no typical victim of a forced marriage. Some may be under 18 (the FMU has been contacted about cases with girls as young as 9), some may be over 18, some may have support needs, some may have young children and some may be spouses from overseas. Although there is no specific criminal offence in England and Wales of "forcing someone to marry", criminal offences may nevertheless be committed. The offenders are usually parents or family members who can be prosecuted for offences including threatening behaviour, assault, kidnap, abduction, theft (of passport), threats to kill, imprisonment and murder. A woman who is forced into marriage is likely to be raped as there is no consent to sexual intercourse. She may be continued to be raped until she becomes pregnant.
13. The majority of cases of forced marriage that are reported to the FMU involve South Asian families, which is partly a reflection of the fact that there is a large South Asian population in the UK. However, it is clear that it is not solely a South Asian problem as the FMU is dealing with more cases from the Middle East, Europe and Africa. (So far this year the country breakdown of FMU cases is as follows: Pakistan (59%), Bangladesh (10%), India (8%), Yemen, Iraq, Turkey, Somalia all (1%).
14. Forced marriage is in breach of a number of international human rights norms.
i. It breaches the right to marry, which includes the right to decide when and whom to marry (Universal Declaration of Human Rights, Art 16; International Covenant on Civil and Political Rights, Art 23; International Covenant on Economic, Social and Cultural Rights, Art 10; Convention on the Elimination of Discrimination against Women, Art 16; the Convention on Consent to Marriage, Art 1; the ECHR, Art 12)
ii. It may infringe the rights to personal liberty and security and the right to freedom from arbitrary detention
iii. The more extreme cases may infringe the right to life and the right to bodily integrity; they can be considered to constitute acts of slavery and/or a form of trafficking of women and children."
The FMU referred to in Miss Smith's statement is the join Home Office and Foreign Office Forced Marriage which was established in 2005. In 2008 the FMU received 1,618 telephone calls or e-mails seeking advice or assistance in relation to possible cases of forced marriage. The comparable figure for the first 10 months of 2009 is 1,327. In 2008 the FMU became involved in 420 cases and thus far in 2009 has become involved in 288 cases. In about a quarter of those cases in which the FMU become involved action was taken to secure what is described as "an overseas rescue and repatriation".
- Before amending paragraph 277 the SSHD engaged in a public consultation process concerning the policy relating to forced marriage. The process began in December 2007. The consultation document signalled the SSHD's intention to raise the qualifying age from 18 to 21. At the conclusion of the consultation process the SSHD announced five proposals. They were:
(i) Raise the age of sponsorship for a marriage visa from 18 to 21;
(ii) Require foreign spouses to enter into an agreement to learn English before they come to the UK;
(ii) Introduce a power to revoke leave to remain where there is evidence that the marriage visa system has been abused;
(iv) Require all sponsors to register their intention to marry overseas before they leave the UK; and
(vi) Ensure through a code of practice that specialist teams can identify vulnerable people at risk of forced marriage.
- From that list it can be seen that the increase in age was only one factor in the policy changes designed to tackle the problem of forced marriage. The policy changes were set out in a policy document published by UKBA in July 2008 entitled "Marriage Visas: The Way Forward". Each of the changes is described in that document. This case is concerned only with the part which deals with the increase of the age 18 to 21. Its essence is as follows:
"3.1 In April 2003, the age at which a person could sponsor a partner to enter the UK for the purpose of marriage was raised from 16 to 18 years. In December 2004, the age of spouses seeking entry to the UK was also increased to 18 years. These measures were introduced to help tackle the problem of forced marriage with the aim of giving young people extra time to mature which would help them to resist inappropriate family pressure to marry.
3.2 The consultation proposed a further increase in the minimum age for sponsorship of a spouse and for those coming to the UK on the basis of marriage from 18 to 21.
3.3 We believe it is right to increase the age at which a person can sponsor or be sponsored as a spouse from 18 to 21. We will introduce changes to the immigration rules to bring this into effect by December 2008.
3.4 We believe that there will be a number of benefits involved in raising the age, these include:
- It will provide an opportunity for individuals to develop maturity and life skills which may allow them to resist the pressure of being forced into a marriage.
- It will provide an opportunity to complete education and training.
- It will delay sponsorship and therefore time spent with (sometimes abusive) spouse if the sponsor returns to the UK.
- It will allow the victim an opportunity to seek help/advice before sponsorship and extra time to make a decision about whether to sponsor."
The policy document went on to summarise the consultation responses which were analysed in more detail in an Annex. Points were made both ways about the wisdom and utility of raising the minimum age. Opinion amongst those individuals and organisations who responded to the consultation exercise was very evenly divided with a slight preponderance of those favouring an increase.
- The proposed change in policy had been considered by the Home Affairs Select Committee in its sixth report of the session for 2007 to 2008. That report was published on 13th June 2008 with reference HC263-1. On the question whether to raise the age to 21, the Committee indicated:
"We have not seen sufficient evidence to determine whether or not raising the age of sponsorship would have a deterrent effect on forced marriage. Given the potential risks involved, we urge the Government to ensure that any changes it proposes to its policy on visa application procedures in respect of sponsorship are based on further research and conclusive evidence as to the effect of those changes. This evidence must demonstrate that any changes will not inadvertently discriminate against any particular ethnic groups."
Before making her policy decision, the SSHD did not commission further research. However, the policy document went on to express the view that there was "conclusive evidence because reports of forced marriage peak sharply at ages 18 and above. By aged 21, reports of forced marriage begin to decline sharply". The policy document analysed the ages of all victims of forced marriages in cases dealt with by the FMU between 2005 and 2008. The analysis is set out graphically in the document with explanatory notes which conclude by saying:
"The figures illustrate that forced marriage can occur at any age although the numbers fall sharply from aged 29 onwards. However, it is apparent that the highest number of forced marriage cases (dealt with by the Forced Marriage Unit in the period 2005 June 2008) involved those aged 18 (72 cases, 10%), followed by those aged 17 and 19 (68 cases each, 9.5% for both ages) and those aged 20 (60 cases, 8.5%)."
- This statistical analysis is drawn from cases identified by the FMU as involving forced marriages. That identification process is triggered by a report to the FMU. As Miss Smith notes in her witness statement, it is difficult to estimate the true scale of forced marriage in the UK. Many cases are likely to go unreported. She alludes to a report prepared by the Department for Children, Schools and Families which estimated that there may have been between 5,000 and 8,000 reported cases of forced marriage in the UK in 2008. The overall numbers of marriage visa applications for persons aged 18, 19 and 20 in the years leading to the rule change are available. Mr Jacobs suggests that the numbers of forced marriages identified by the FMU amounted to only about 4.5% of the total number of such applications. From that he reasons that 95.5% of such marriages should be assumed not to be forced. But that conclusion does not follow. The true scale of the problem of forced marriages remains unknown.
- The policy document noted that the Netherlands had increased the minimum age requirements for marriage visas from 18 to 21 for both sponsor and applicant in November 2004 and Denmark had increased the age requirement to 24 in 2002. This section of the policy document concluded by dealing with some particular concerns that had been raised by the Home Office Affairs Select Committee:-
"3.14 We have carefully considered the issues raised by the Home Affairs Select Committee and the respondents to the consultation. We have paid particular attention to whether an increase in age from 18-21 would be proportionate given concerns that raising the age would penalise a number of genuine couples and discriminates against specific religious communities where the average age of marriage is likely to be lower including such communities where forced marriage is uncommon.
3.15 The committee was also concerned that there is a significant risk that young people would be kept abroad for sustained periods between a marriage and being able to return to the UK with their spouse. However, this has not been the general pattern of movement observed by the Forced Marriage Unit who indicated that sponsors generally return to the UK until they reach the sponsorship age."
- The attack on the rationality of the new policy, and thus also its proportionality, has been founded substantially upon the conclusions of a research project headed by Professor Marianne Hester of Bristol University. She and her colleagues produced a draft final report to the Home Office on 15th February 2007. The report was entitled "Forced Marriage: The risk factors and the effect of raising the minimum age for a sponsor, and of leave to enter the UK as a spouse or fiancι(e)". This report was not published by the Home Office because of concerns about the reliability and validity of its findings and conclusions. It was in fact published by Bristol University. The report was based upon research conducted between March 2006 and early 2007 in Birmingham, Manchester and Tower Hamlets. The authors of the report concluded that the age should not be raised to 21 and made a number of recommendations for policy changes, increased funding and Government activity at a domestic and international level to reduce the incidence of forced marriage. The focus of the research was in communities perceived as having "the propensity for forced marriage", as the authors put it. They noted the definitional difficulties in the concept of "forced marriage" and the problem of separating it in the minds of those questioned from "arranged marriages", which as already noted has nothing to do with this policy. So rather than using the term "forced marriage", the research team devised a different formulation in an attempt to maximise responses from communities and individuals. They put it like this:
"We are studying different 'arrangements' of marriages in different communities, and examining how they might intersect with immigration policies and practices".
In the body of the draft report, its authors noted that
"stakeholders expressed concerns that raising the age of sponsorship or entry was not about tackling forced marriage and protecting women, but about the underpinning subtext of immigration control."
That view was apparently expressed by many of those to whom the researchers spoke.
- In its own terms, therefore, the report immediately identifies two possible problems with the validity of any conclusions it might reach as a result of the strength of feeling against raising the age expressed by those consulted. The first is that there was a lack of understanding of the relatively narrow concept of "forced marriages". The second was a suspicion that there was an ulterior motive for the underlying suggested policy change.
- The Home Affairs Select Committee saw and referred to the research project led by Professor Hester. It was in that connection that the Committee considered that there needed to be further research.
- The Home Office readily produced the report in response to a Freedom of Information Act request, although as I have already indicated it had been published by Bristol University. At the same time the Home Office produced a document dated 3rd April 2008 which identified quality issues relating to the report:-
"Individuals experiencing forced marriage are a hard-to-reach group and the methodology used in the research was deemed the most effective. However, the reporting undermines the reliability and validity of the findings for the following reasons.
Unsubstantiated reporting of findings
- A number of statements cannot be substantiated due to insufficient sample size and a lack of research evidence. Conclusions such as, mental illness as a significant risk factor among men, cannot be justified on the basis of a single respondent. The numbers of respondents who cited different points is not always given making the findings misleading.
- The type of respondents, for example, individuals, organisations, victims and survivors included in different groups cannot be established. Therefore it is not possible to identify the specific groups for and against an increase in age.
- The quantitative data obtained from the mapping survey was insufficient to draw any conclusions regarding the prevalence of forced marriage, due to the small number of participating organisations.
- The report frequently used unclear and poorly defined terminology, such as 'control over sexuality'. These terms are not generally understood by the general public.
- The nature of the research may have created distrust and suspicion amongst research participants and a sampling bias in favour of organisations and individuals who did not have a critical or radical perspective on the issues being explored. Participants from some groups might perceive the study as instrumental in further restricting immigration and in potentially interfering with cultural practices around arranged marriages.
- It must be borne in mind that the research was undertaken in only three case study areas, therefore the findings are not representative of the whole country. Additionally, there was a sample bias towards South Asian populations.
- It was necessary to use snowballing techniques and agencies to facilitate access to all participants and particularly victims/survivors of forced marriage. It was not therefore a representative sample. Snowballing introduces bias as it favours those who are active in the community, and includes only the people who want to be interviewed or to whom agencies allow access.
- Some respondents' beliefs regarding forced marriage may have introduced bias. The term 'forced' can be misleading because it presupposes that physical force must play a part for a marriage to be forced. Furthermore the widely held view among respondents that forced marriage only occurs in South Asian communities may have reduced response rates.
Overall, the findings should be treated with considerable caution and can only be considered as indicative and not representative of all communities or community organisations." (original emphasis)
- In making the observations set out in that document, the Home Office was not criticising Professor Hester and her colleagues whose research task was a very difficult one. The question it was concerned with was the evidential value and reliability of the conclusions given the concerns identified. In her evidence before this court Miss Smith has adopted the critique set out above.
The Competing Submissions
- Mr Jacobs submits that the policy which resulted in the increase of the age requirement under paragraph 277 from 18 to 21 is irrational in a traditional public law sense and disproportionate. That is because it has no rational connection with the object of the policy namely to discourage or reduce the incidence of forced marriage. It is disproportionate because in those cases where the parties affected have marriages which are not forced, it will entail (in most if not all cases) an interference with the right to family life for the purposes of Article 8(1). That is because the parties will be forced to live somewhere other than the United Kingdom. Mr Jacobs submits that the policy cannot be justified under Article 8(2) applying the test of proportionality formulated by Lord Clyde in the Privy Council in de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing  1 AC 69, approved by the House of Lords in R v Secretary of State for the Home Department, ex parte Daly  2 AC 532 per Lord Steyn at paragraph . Mr Jacobs accepts that the objective of discouraging forced marriages is a legitimate objective which justifies interference with Article 8 rights, but disputes that the new paragraph 277 is rationally connected to that objective or is no more than necessary to accomplish it. He submits that to achieve the legal standards of both rationality and proportionality there must be a mechanism that requires the SSHD to exempt from the operation of the rule those marriages which are not in fact forced. He relies by analogy on the decision of the House of Lords in R (Baiai) v Secretary of the Home Department  1 AC 287 which concerned the right to marry under Article 12 ECHR in the context of measures designed to combat marriages of convenience entered into solely to secure an immigration advantage. Mr Jacobs submits that it is not possible to distinguish the reasoning in Baiai. Their lordships considered that the requirement for prior authority to marry from the SSHD was itself unobjectionable but to be lawful the scheme must be operated to enable the SSHD to investigate the circumstances of the proposed marriage and withhold consent only if it appeared that the marriage was indeed one of convenience. He further submits that the policy is unlawful because it is discriminatory and thus breaches Article 14 ECHR. Finally, even if what might be described as the generic objections to the policy are not established, Mr Jacobs submits that the application of the policy to the claimant and his wife was irrational and a disproportionate interference with their Article 8 rights. The claimant should have been given leave to remain outside the policy to respect those rights. Alternatively, the SSHD should have recognised that there were clear exceptional compassionate circumstances that justified the grant of leave.
- Mr McCullough, who appeared for the SSHD, submits that the policy is rational. All the criticism of it founded on the conclusions of Professor Hester's research group carries the claimant nowhere. The claimant is in truth submitting that the SSHD was bound by those conclusions and by the view of the Home Affairs Select Committee. She was bound by neither, and for very good reason concluded that there were difficulties with the research. The fact that other European countries had raised the age requirement to 21 and 24 respectively was an indicator of rationality. Mr McCullough quarrelled with the suggestion that paragraph 277 would necessarily result in an infringement of Article 8(1) in a case which was not a forced marriage and the result was a refusal of leave to the spouse of a UK national. In any event, he submitted that if judged by reference to Article 8(2) the policy and rule are proportionate. The SSHD in these decisions recognised that Article 8 might, in an appropriate case, give rise to a grant of exceptional leave and she also retained discretion to grant leave outside the rules. He submits that Article 14 adds nothing to the consideration of proportionality and rationality. Finally, he submits that the facts of this case involve no interference under Article 8(1) of the rights of the claimant or his wife, but that if there is any such interference it is amply justified under Article 8(2).
- The evidence suggests that the problem of forced marriages is a real one. Its serious impact on those who are forced into such a marriages is self-evident. The analysis of Miss Smith in the passages from her statement quoted in paragraph  above demonstrates the serious nature of the problem. No complaint is made that the Government decided to investigate steps it might take with a view to reducing the incidence of forced marriage. The nature of that problem is reflected in the setting up the FMU. The experience gained by that unit in investigating cases of alleged forced marriage provides important evidence by reference to age. The data collected by the FMU is necessarily limited to those cases which come to its attention. The data comes from a tiny proportion of all foreign spouse applications for leave to enter or remain. That does not mean that the information provided is valueless. Similarly, as already noted, no assumptions can be made that the FMU picks up all, or even a significant proportion, of forced marriages. The indications are that the problem is a large one. It should not be overlooked that a forced marriage will necessarily suggest that at least one of the parties has had his or her will overborne. So the fact of under-reporting should come as no surprise.
- The focus of the claimant's attack on the rationality of the increase in the age to 21 was the SSHD's failure to accede to the recommendations found in the report from Professor Hester and her colleagues, echoed by the view of the Home Affairs Select Committee, that until further research was undertaken the SSHD should stay her hand on this aspect of the proposed changes. In short, it is argued that in the face of that research the only rational response available to the SSHD was to leave the age limit at 18.
- In my judgment, the SSHD cannot properly be criticised for treating the conclusions of the research with caution. On its face, as it seems to me, the report identifies many of the problems it encountered. If, as the authors recognise, a large number of those providing information were suspicious of the motives underlying the suggested change of policy and there were difficulties in conveying a clear definition of 'forced marriage' to those being consulted, the results of research are likely to be of restricted value. The various reasons given by the SSHD for treating the research with caution are, in my view, entirely coherent. In suggesting that the SSHD was irrational in failing to heed the advice of the Home Affairs Select Committee the claimant confuses the distinction between those asked to or entitled to advise and those charged with making a decision. A decision maker must take into account the results of a consultation process, the product of research and the views of a body such as the Select Committee. But the decision maker is called upon to make her own judgment taking account of all the information available. I do not consider that the SSHD can be criticised in law for resting her decision very substantially on the available statistical data.
- Mr McCullough prayed in aid the fact that other countries had increased the age to 21 and 24, although the resulting changes in patterns of forced marriage were difficult to evaluate with precision. He also emphasised that the consultation responses showed a sharp divide of opinion which at the least demonstrated that there was legitimately room for two views on the subject. In my judgment, these additional points provide further support for the contention that the policy change was rational.
- Mr Jacobs relies upon the following passage from the second statement of Nicola Smith to suggest that the SSHD was now recognising that the policy had no sure or rational foundation:
"Although the available evidence did not definitely indicate (either way) whether or not the increase in the age limit would contribute to the aim of prevention and deterrence of forced marriages, the judgment was reached by the Government that it would significantly contribute towards that aim, through helping to protect young and vulnerable people."
This paragraph does no more that state that the impact could not be predicted with certainty. It does not affect the central reasoning that the statistical evidence showed a disproportionate number of forced marriages in those under 21. It was on that evidence, together with the fruits of the consultation process, the research and other advice, that the SSHD was called upon to make a judgment, which was essentially political.
- Mr Jacobs further submits that the policy is irrational because it inevitably impacts upon large numbers of individuals who are not parties to forced marriages. The SSHD does not doubt that is so, even if, for the reasons I have given, it is not possible to identify that proportion with precision. In paragraph 20 of her first witness statement, Miss Smith explains that the numbers of individuals affected by the rule change was a small proportion of the overall numbers applying for leave to enter or remain as the spouses of British nationals:
"In 2006, for example, 7% (3,420) of spouses granted leave to enter the UK were aged between 18 and 20 and 2.5% (520) of people granted leave to remain in the UK as a spouse were within this age group. In 2007, 2.7% (1,245) of spouses granted leave to enter and 2.6% (700) of spouses granted leave to remain in the UK as a spouse were aged 18 to 20."
She went on to explain that the figures were provisional management information and had not been quality assured as a national statistic.
- Different people confronted by the information touching forced marriage might well react in a variety of ways in making judgements about the need to raise the qualifying age given its undoubted impact on some whose marriages are entirely regular. At the heart of that judgement is an assessment of how pernicious the practice of forced marriage is, and thus the policy imperative to try to deal with it. For those whose marriages are regular, the effect of the rule for many who wish to live together will be to require the parties to live abroad for a period of up to three years. There is no question of the policy preventing regular marriages. Its impact is limited to preventing the enjoyment of married life in this country, as opposed to elsewhere. The impact of the policy is softened by the availability of leave outside the rules in compelling compassionate circumstances.
- It was not, in my view, irrational to increase the age limit. The policy judgment was that the adverse impact on marriages that are not forced was justified to meet the overall objective. That was a reasonable view.
- Finally, I am unable to accept that it is irrational to apply the policy, subject to the exception identified, without investigating the individual circumstances of every application with a view to forming a judgment on the question whether the marriage was or was not forced. The exception to the policy that allows leave to be granted in compelling compassionate circumstances would no doubt involve a conclusion that the marriage was not forced. It would be difficult to imagine granting leave outside the rules when the marriage was forced. It does not follow that the converse applies so that all those who can demonstrate to the satisfaction of the SSHD that the marriage is not forced should be given leave, still less that the policy (and thus the rule) should be crafted to impact only on forced marriages, thus requiring the SSHD to investigate the circumstances of each marriage. There is a utility in having clear rules which are capable of ready understanding and application. As Mr McCullough submits the burden of requiring an investigation in every case to decide whether or not the marriage was forced would be very substantial. It might well require in many cases direct face to face contact with both parties to the marriage. Additionally, there is a particular problem in the suggestion that every case must be investigated. The evidence from the FMU suggests that it investigates complaints of forced marriage and then takes steps to assist its victims. That may entail the involvement of domestic agencies, or British diplomatic staff and foreign agencies with the possibility of 'rescue' being pursued. The FMU has been party to the rescue of large numbers of trapped spouses. This emphasises the vulnerability of those subjected to forced marriage whose position as such has been identified.
- The proposition advanced by the claimant is that a rule must be formulated which requires an entry clearance officer (in a diplomatic mission), or official of UKBA in the UK, to investigate the circumstances of each marriage. The conclusion that a marriage is forced would lead to the refusal of an entry clearance or leave. It might be possible to draw such a conclusion from circumstantial evidence but it is more likely that it would follow an interview with, or the provision of information by or on behalf of, the forced party. Mr McCullough suggests that pursuing the course advocated by the claimant might well put parties to forced marriages at risk in these circumstances. That seems to me to be a powerful argument.
- In the result, this aspect of the challenge fails. The policy and rule are rational and intra vires the rule making power of section 3(2) of the Immigration Act 1971.
- Article 8 ECHR provides:-
"(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
- It has been the consistent stance of the Strasbourg Court that Article 8 does not oblige states to respect the choice by married couples of their matrimonial residence or to accept the settlement of a non-national spouse in the country. The relevant principles were articulated in Abdulaziz, Cabales and Balkandali v. UK  7 EHRR 471. They were distilled by the court in the following paragraphs:-
"66. The applicants contended that respect for family life - which in their cases the United Kingdom had to secure within its own jurisdiction - encompassed the right to establish one's home in the State of one's nationality or lawful residence; subject only to the provisions of paragraph 2 of Article 8, the dilemma either of moving abroad or of being separated from one's spouse was inconsistent with this principle. Furthermore, hindrance in fact was just as relevant as hindrance in law: for the couples to live in, respectively, Portugal, the Philippines or Turkey would involve or would have involved them in serious difficulties (see paragraphs 43, 49 and 54 above), although there was no legal impediment to their doing so.
67. The Court recalls that, although the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, there may in addition be positive obligations inherent in an effective "respect" for family life (see the above-mentioned Marckx judgment, Series A no. 31, p. 15, para. 31). However, especially as far as those positive obligations are concerned, the notion of "respect" is not clear-cut: having regard to the diversity of the practices followed and the situations obtaining in the Contracting States, the notion's requirements will vary considerably from case to case. Accordingly, this is an area in which the Contracting Parties enjoy a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention with due regard to the needs and resources of the community and of individuals (see, amongst other authorities, mutatis mutandis, the above-mentioned "Belgian Linguistic" judgment, Series A no. 6, p. 32, para. 5; the National Union of Belgian Police judgment of 27 October 1975, Series A no. 19, p. 18, para. 39; the above-mentioned Marckx judgment, Series A no. 31, p. 15, para. 31; and the Rasmussen judgment of 28 November 1984, Series A no. 87, p. 15, para. 40). In particular, in the area now under consideration, the extent of a State's obligation to admit to its territory relatives of settled immigrants will vary according to the particular circumstances of the persons involved. Moreover, the Court cannot ignore that the present case is concerned not only with family life but also with immigration and that, as a matter of well-established international law and subject to its treaty obligations, a State has the right to control the entry of non-nationals into its territory.
68. The Court observes that the present proceedings do not relate to immigrants who already had a family which they left behind in another country until they had achieved settled status in the United Kingdom. It was only after becoming settled in the United Kingdom, as single persons, that the applicants contracted marriage (see paragraphs 39-40, 44-45 and 50-52 above). The duty imposed by Article 8 cannot be considered as extending to a general obligation on the part of a Contracting State to respect the choice by married couples of the country of their matrimonial residence and to accept the non-national spouses for settlement in that country.
In the present case, the applicants have not shown that there were obstacles to establishing family life in their own or their husbands' home countries or that there were special reasons why that could not be expected of them.
In addition, at the time of their marriage
(i) Mrs. Abdulaziz knew that her husband had been admitted to the United Kingdom for a limited period as a visitor only and that it would be necessary for him to make an application to remain permanently, and she could have known, in the light of draft provisions already published (see paragraph 20 above), that this would probably be refused;
(ii) Mrs. Balkandali must have been aware that her husband's leave to remain temporarily as a student had already expired, that his residence in the United Kingdom was therefore unlawful and that under the 1980 Rules, which were then in force, his acceptance for settlement could not be expected.
(iii) In the case of Mrs. Cabales, who had never cohabited with Mr. Cabales in the United Kingdom, she should have known that he would require leave to enter and that under the rules then in force this would be refused.
69. There was accordingly no "lack of respect" for family life and, hence, no breach of Article 8 (art. 8) taken alone."
- It is important to note that the conclusion of the Strasbourg Court in each case was that there was no lack of respect for family life. There was no interference under Article 8(1) which called for justification under Article 8(2). Three particular factors appeared to weigh with the court. First, that there were no obstacles to establishing family life aboard. Secondly, there were no special reasons why establishing family life abroad could not be expected of the spouses. Thirdly, in each case those affected were well aware that at the material time leave could not be expected under the rules.
- Whilst in individual cases a decision to refuse leave to enter or remain in the UK might give rise to an interference with Article 8 rights under paragraph 8(1), the operation of paragraph 277 does not necessarily involve such interference in every case. Given the approach of the Strasbourg Court in Abdulaziz it is likely that only in some cases will the State be called upon to justify its action under Article 8(2) in these circumstances.
- I shall nonetheless consider the proportionality of the policy as a whole as if it does necessarily interfere with Article 8 rights, before turning to the individual circumstances of the claimant and his wife in the context of Article 8.
- Mr Jacobs submits that paragraph 277 can be proportionate for the purposes of Article 8 only if there is a mechanism in place which determines in all cases whether the marriage in question is or is not forced. This echoes the argument advanced by reference to rationality. He supports his general proportionality argument by repeating those advanced by reference to rationality and emphasises that the policy is bound to impact upon in large numbers marriages freely entered into. He submits that even if the policy is rational in domestic law terms, it is not proportionate for ECHR purposes. In support of the submission that a mechanism must be in place to determine in all cases whether the marriage is in fact forced, he relies by analogy upon the decision of the House of Lords in Baiai.
- Baiai was concerned with marriages of convenience, that is to say marriages entered into to provide an immigration advantage to one of the parties. EC Council Resolution 97/C 382/01 of 4th December 1997 (OJ1997C382, p1) provided that where there were suspicions supporting a belief that a marriage was one of convenience, Member States should issue a residence permit to a third country national on the basis of marriage only after checks had been made to establish that the marriage was not one of convenience. If the conclusion was that the marriage was of convenience then ordinarily a residence permit should be withdrawn, revoked or not renewed. The resolution contemplated that the third country national should have an opportunity to contest the conclusion. The resolution envisaged that Member States would bring their national legislation into line by 1st January 1999. The UK first achieved that through the Immigration and Asylum Act 1999 but new legislation, Section 19 of the Asylum Immigration (Treatment of Claimants, etc) Act 2004 together with the Immigration (Procedure for Marriage) Regulations 2005 introduced a new regime dealing with such questions. One of the conditions imposed was that the person concerned required written permission of the SSHD to marry in the UK (see Section 19(3)(b)). The cases collected together and heard in Baiai all concerned individuals who had sought the written permission of the SSHD to marry in the UK but to whom permission was denied. The case concerned Article 12 ECHR which, as Lord Bingham observed in paragraph  "gives those within the jurisdiction a right to marry." The issue before the House of Lords was whether the scheme established by and under Section 19 involved a disproportionate interference with, and thus a breach of, the Article 12 right to marry. Both the Judge at first instance and the Court of Appeal had concluded that it did, a conclusion which the House of Lords endorsed. The SSHD advanced her case by reference to a series of propositions which Lord Bingham considered and rejected seriatim. The first and perhaps most crucial proposition which the SSHD sought to establish was that the right to marry protected by Article 12 was not an absolute right and that interference with it could be justified on grounds similar to those identified in Article 8(2). Lord Bingham rejected that analysis for the reasons set out in paragraph  of his opinion concluding in paragraph :
"The Strasbourg jurisprudence requires the right to marry to be treated as a strong right which may be regulated by national law both as to procedure and substance but may not be subjected to conditions which impair the essence of the right."
- The second proposition advanced by the Secretary of State was that conditions on the right to marry that served the interests of an effective immigration policy were justifiable, provided that such measures satisfied the requirements of proportionality. Lord Bingham considered that proposition to be too broadly stated. He was thus drawing a contrast between the approach in Article 12 cases and that usually found when considering qualified rights guaranteed by the ECHR, such as Article 8. Relying on much the same reasoning, the SSHD had thirdly argued that it was permissible to restrict the right marry in cases which were genuine as well as those which were of convenience. For the same reasons Lord Bingham rejected that proposition. Fourthly, he also considered that it was too simplistic in the context of Article 12 to approach the matter by reference to the well known formula of striking a fair balance between the demands of the general interests of the community and the requirements of the protection of the fundamental rights of individuals. He concluded that the Section 19 Scheme was not within the category of national regulatory laws which Article 12 undoubtedly permits. Finally, he rejected as too sweeping the proposition that the Section 19 Scheme fell within an area of broad social policy where the judgment of the legislature and executive should be given considerable weight. The question was whether the Section 19 Scheme violated the Article 12 right itself.
- Thus it can be seen that the conclusion of the House of Lords depended critically on the nature of the Article 12 right and, explicitly, its contrast with Article 8 rights. For this reason it seems me to be a case that does very little to illuminate the Article 8 issues that arise in this claim.
- There was no disagreement between the parties about the legal principles underlying the approach to Article 8. Following R (Razgar) v. SSHD  2 AC 368 and R (Huang) v. SSHD  2 AC 167, in AG (Eritrea) and SSHD  EWCA Civ 801;  All ER 28 Sedley LJ sought to synthesise the reasoning from both. The following paragraphs from his judgment sufficiently identify the principles in play:
"In R (Razgar) v Home Secretary  2 AC 368 Lord Bingham, giving the leading speech, turned from the related but distinct questions canvassed in the parallel case of R (Ullah) v Special Adjudicator  UKHL 26 in relation to art. 3 to the question: "Can the rights protected by article 8 be engaged by the foreseeable consequences for health and welfare of removal
where such removal does not violate article 3?" The House's answer was that they could be. The problem which is now before us arises from the conditionality of the answer. "
Lord Bingham's speech, which had the assent of Lord Steyn and Lord Carswell, and in large part too of Lord Walker and Baroness Hale notwithstanding their dissent as to the outcome, proposed at §17 the following questions as those which were likely to have to be answered by an adjudicator on an art. 8 appeal:
(1) Will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect for his private or (as the case may be) family life?
(2) If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8?
(3) If so, is such interference in accordance with the law?
(4) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others?
(5) If so, is such interference proportionate to the legitimate public end sought to be achieved?
Proposition (5) was elaborated by Lord Bingham as follows:
"The answering of question (5), where that question is reached, must always involve the striking of a fair balance between the rights of the individual and the interests of the community which is inherent in the whole of the Convention. The severity and consequences of the interference will call for careful assessment at this stage. The Secretary of State must exercise his judgment in the first instance. On appeal the adjudicator must exercise his or her own judgment, taking account of any material which may not have been before the Secretary of State. A reviewing court must assess the judgment which would or might be made by an adjudicator on appeal. In Secretary of State for the Home Department v Kacaj  Imm AR 213, 228, para 25, the Immigration Appeal Tribunal (Collins J, Mr C M G Ockelton and Mr J Freeman) observed that:
"although the [Convention] rights may be engaged, legitimate immigration control will almost certainly mean that derogation from the rights will be proper and will not be disproportionate."
When Huang reached their Lordships' House, it was resolved in a single opinion delivered on behalf of the Appellate Committee by Lord Bingham. Their Lordships did not criticise this court's characterisation of the key issue as revolving around proportionality and therefore lying under art. 8(2). In §19 they considered the proper approach to the question of proportionality, and then in §20 said this:
"20. In an article 8 case where this question is reached, the ultimate question for the appellate immigration authority is whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by article 8. If the answer to this question is affirmative, the refusal is unlawful and the authority must so decide. It is not necessary that the appellate immigration authority, directing itself along the lines indicated in this opinion, need ask in addition whether the case meets a test of exceptionality. The suggestion that it should is based on an observation of Lord Bingham in Razgar, para 20. He was there expressing an expectation, shared with the Immigration Appeal Tribunal, that the number of claimants not covered by the rules and supplementary directions but entitled to succeed under article 8 would be a very small minority. That is still his expectation. But he was not purporting to lay down a legal test."
The effect of their Lordships' decision (and, if we may say so, the intended effect of this court's decision) in Huang has thus not been to introduce a new interpretation of art.8 but to clarify and reiterate a well understood one. While its practical effect is likely to be that removal is only exceptionally found to be disproportionate, it sets no formal test of exceptionality and raises no hurdles beyond those contained in the article itself.
We turn to Lord Bingham's second proposition in Razgar, which he explained in this way at §18:
"Question (2) reflects the consistent case law of the Strasbourg court, holding that conduct must attain a minimum level of severity to engage the operation of the Convention: see for example Costello-Roberts v United Kingdom (1993) 19 EHRR 112."
The Costello-Roberts case concerned the use of corporal punishment by the headmaster of a private school on a small boy against his and his parents' wishes. In dismissing his article 8 claim the Court said at §36:
to the purpose and aim of the Convention taken as a whole, and bearing in mind that the sending of a child to school necessarily involves some degree of interference with his or her private life, the Court considers that the treatment complained of by the applicant did not entail adverse effects for his physical or moral integrity sufficient to bring it within the scope of the prohibition contained in article 8."
The decision, while clearly illustrating the principle for which Lord Bingham cites it, does not say or imply that the minimum level of severity required to bring a case within the article is a special or a high one. It is apparent from the passage we have cited that in Costello-Roberts the surrender of a substantial measure of the child's autonomy and the parents' control to the school was a critical consideration: see the commentary in Clayton and Tomlinson, The Law of Human Rights §12.86. Even then the court was divided by 5 to 4 as to whether the beating of "a lonely and insecure seven-year-old boy" crossed the threshold, with the then President, Judge Ryssdal, and the future President, Judge Wildhaber, among the authors of a powerful dissent. Most tellingly, perhaps, the United Kingdom judge, Sir John Freeland, said in an opinion concurring with the majority:
"But it must be evident, if only from the division of opinion in the Court, that the case is at or near the borderline."
It follows, in our judgment, that while an interference with private or family life must be real if it is to engage art. 8(1), the threshold of engagement (the "minimum level") is not a specially high one. Once the article is engaged, the focus moves, as Lord Bingham's remaining questions indicate, to the process of justification under art. 8(2). It is this which, in all cases which engage article 8(1), will determine whether there has been a breach of the article."
- One further citation from authority is necessary. There had been a view that it would be proportionate to remove a spouse unless there was an 'insuperable obstacle' to the other joining him. The Strasbourg Court had spoken of 'obstacles' in Abdulaziz at  rather than insuperable obstacles, but the language of 'insuperable obstacles' was used by the Third Section of that Court in Konstantinov v The Netherlands (26 April 2007) (App. No 16351/03 at . In EB (Kosovo)  UKHL 41 Lord Bingham put it thus at paragraph :
"The authority will, of course, take note of factors which have, or have not, weighed with the Strasbourg court. It will, for example, recognise that it will rarely be proportionate to uphold an order for removal of a spouse if there is a close and genuine bond with the other spouse and that spouse cannot reasonably be expected to follow the removed spouse to the country of removal, or if the effect of the order is to sever a genuine and subsisting relationship between parent and child. But cases will not ordinarily raise such stark choices, and there is in general no alternative to making a careful and informed evaluation of the facts of the particular case. The search for a hard-edged or bright-line rule to be applied to the generality of cases is incompatible with the difficult evaluative exercise which article 8 requires." (emphasis added).
The question of whether it is reasonable to expect a spouse to follow her husband to another country informs the question of proportionality in an individual case. Equally, it is a factor that the Strasbourg Court recognised could inform the anterior question whether there has been a lack of respect for the purposes of Article 8(1). In Abdulaziz the applicants had not shown that there were obstacles to establishing family life abroad or 'that there were special reasons why that could not be expected of them' (see paragraph ).
- In considering the claimant's general contention that the policy and rule are disproportionate, on the assumption that it inevitably interferes with the Article 8 rights of those between 18 and 20, it is questions four and five formulated by Lord Bingham in Razgar which are in play.
- The policy is directed towards the protection of the rights and freedoms of others, namely those forced into marriages against their will. It is uncontroversial that it pursues a legitimate public aim. It is the proportionality of the policy and paragraph that is in issue. I have already concluded that the policy is rationally connected to the public aim. For the following reasons I also conclude that the policy and rule are proportionate to the legitimate aim of discouraging forced marriage:
(i) The mischief that the policy and rule are designed to meet, albeit only as part of a wider policy, is a grave one. The violation of individual rights of those forced into marriage is particularly serious, reasonably calling for a more vigorous policy response than, for example, to marriages of convenience which impact on the integrity of immigration policy.
(ii) The evidence suggests that the problem of forced marriage is a large scale one, likely to be very substantially under-reported. There would be significant practical difficulties of time and resources in seeking to formulate a policy that required an investigation and conclusion on the question whether a marriage was, or was not forced.
(iii) Those practical difficulties would include the probability of generating risk to the forced party in cases where leave was refused.
(iv) As the Strasbourg Court recognised in Abdulaziz, at the supranational level Contracting States enjoy a wide margin of appreciation in the area of Article 8 (see paragraph ). In domestic law terms the decision falls within an area of social policy where the executive is accorded a wide margin of discretion, particularly in the context of immigration control.
(v) The rule need not be applied in exceptional circumstances. It thus does not exclude the possibility of leave being given when compelling circumstances justify it. The exception to the bright line rule in paragraph 277 would be applied in any case where on the individual facts a refusal to allow the foreign spouse leave to enter or remain would involve a violation of Article 8.
- The claimant attacks the policy and rule through Article 14 ECHR on the basis of unjustifiable discrimination against those under 21. Article 14 provides that:
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any grounds 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"
Article 14 does not provide an independent right but comes into play when considered in connection with other substantive rights protected by the ECHR. It is not necessary to establish a breach of a substantive right to rely upon Article 14, but rather to establish that action complained about comes within the ambit of one of the other provisions of the ECHR. The policy and rule in question clearly fall within the ambit of Article 8. Mr Jacobs submits that 'age' is 'another status' for the purposes of Article 14.
- Whilst Mr McCullough was not disposed to concede that 'age' could be 'other status' for the purposes of Article 14, I note that the Secretary of State for Work and Pensions did not contest that proposition in R (Carson) v Work and Pensions Secretary  1 AC 173, nor did the Secretary of State for Defence in R (Gurung) v Secretary of State for Defence  EWHC 1496 (Admin). Mr Jacobs does not seek to argue that 'age' is a 'suspect' ground calling for especially strong justification for Article 14 purposes. For a comprehensive discussion of the concept of suspect grounds of discrimination see paragraphs  to  of the speech of Lord Walker of Gestingthorpe in Carson.
- Given my conclusions on the questions of rationality and proportionality of the policy and rule, the claimant faces an insuperable difficulty in establishing that they nonetheless amount to unlawful discrimination. Once Article 14 is in play, it is necessary to consider whether there has been differential treatment between the Claimant and another on a ground protected by Article 14. Thereafter, if there has been differential treatment, the question arises whether there is enough of a relevant difference between the Claimant and the other to justify different treatment.
- I take that formulation from paragraph 31 of the speech of Lord Hoffmann in Carson. He was there commenting upon the so-called Michalak questions formulated by Brooke LJ in Wandsworth LBC v Michalak  1 WLR 617, 625 at paragraph  and various attempts to refine them. What is clear is that the approach to discrimination claims under Article 14, whilst often assisted by Michalak, should not be strait-jacketed by it. As Lord Nicholls of Birkenhead put it in paragraph 3 of Carson:
"For my part, in company with all your Lordships, I prefer to keep formulation of the relevant issues in these cases as simple and non-technical as possible. Article 14 does not apply unless the alleged discrimination is in connection with a Convention right and on a ground stated in Article 14. If this prerequisite is satisfied, the essential question for the court is whether the alleged discrimination, that is, the difference in treatment of which complaint is made, can withstand scrutiny. Sometimes the answer to this question will be plain. There may be such an obvious, relevant difference between the claimant and those with whom he seeks to compare himself that their situations cannot be regarded as analogous. Sometimes, where the position is not so clear, a different approach is called for. Then the court's scrutiny may best be directed at considering whether the differentiation has a legitimate aim and whether the means chosen to achieve the aim is appropriate and not disproportionate in its adverse impact."
For the reasons given in support of my conclusions on irrationality and proportionality by reference to the policy and rule, the difference in treatment between those over and those under 21 withstands scrutiny.
Article 8 and the Individual Circumstances of the Claimant
- Diego Aguilar Qulia is now the only claimant in these proceedings (his wife having been translated from a claimant to an interested party by agreement). It is clear on the authority of Beoku-Betts v Secretary of State for the Home Department  AC 115 that in considering whether his departure from the United Kingdom would disproportionately interfere with his Article 8 rights account should be taken of the impact on his wife as well as upon him. Although the House of Lords was there concerned with proportionality under Article 8(2), interference under Article 8(1) not being in issue, the same reasoning applies to the anterior question whether there has been an interference which calls for justification.
- Mr Jacobs submits that the claimant and his wife were faced with a dilemma when the claimant failed to secure leave to remain in the United Kingdom. The dilemma was whether to continue to live together throughout the year in Chile or to endure separations during term time to enable Mrs Aguilar to pursue her degree course at Royal Holloway College. He submits that, in the light of the observations of the Court of Appeal in AG (Eritrea) quoted in paragraph  above that the minimum level of interference is not an especially high one, being confronted with a dilemma which might result in separation if one spouse chooses not to follow the other to an overseas country is necessarily sufficient to amount to an interference for the purpose of Article 8(1).
- I do not accept that submission. In every case not concerning a forced marriage which involves an application by one spouse to join, or remain with, the other in the United Kingdom it can be assumed that given the choice both would prefer to be here. That choice might be based on any number of reasons, but is likely in most cases to involve assessments of quality of life and the opportunities available in the United Kingdom as compared with the applying spouse's home country. Those with a right to be in the United Kingdom are always going to face a dilemma if leave to enter or remain as a spouse is refused. Will they stay or will they go? That cannot, in my judgment, be sufficient in all cases to justify a conclusion that an immigration decision that might lead to separation, if one chooses not to follow the other, interferes with family life. Such a conclusion would be inconsistent with the jurisprudence of the Strasbourg Court fully articulated in Abdulaziz and applied since. The three applicants in that case faced precisely this dilemma yet the Strasbourg Court concluded that there was no interference for the purposes of Article 8(1).
- The SSHD concluded that there was no interference with the Article 8 rights of the claimant and his wife. Mr McCullough supports that conclusion. For reasons which follow, I consider that the SSHD's conclusion was correct.
- At the time that they married, the claimant and his wife were well aware that he did not qualify for entry under paragraph 277 as it then stood, and furthermore that the rules were about to be changed. That was why they asked the SSHD to make an exception for them when the claimant made his application in November 2009. There was no expectation that the claimant would be granted leave to remain in the United Kingdom, in just the same way as none of the applicants in Abdulaziz had such an expectation. The expectation was that he would not be granted leave to remain.
- The entire focus of the claimant and his wife is upon the potential interference with her educational opportunities with the potential knock-on effect of deferred employment in her chosen field in the United Kingdom. At the time that the claimant and his wife decided to get married she was in the process of making her applications to university and in due course was offered and then secured her place at Royal Holloway College. Given the circumstances that now obtain, the claimant's wife has three broad options. The first is to defer her higher education until she is 21. On that hypothesis she will continue to live in Chile with her husband, no doubt pursuing different interests in the meantime. Secondly, she might take up her place at the end of September 2010 and return to Chile during the vacations with the possibility of the claimant coming to the United Kingdom from time to time as a visitor until his wife reaches her 21st birthday in April 2012. That is a period of a little over 18 months. Thirdly, she might change tack and pursue higher education in Chile leading to a different career path from the one she presently has in mind, or at least a different one in the short term.
- Whilst there is a suggestion in the evidence that the claimant's wife misses her family and friends, which is entirely understandable, exacerbated by telecommunications difficulties, I do not consider that this factor adds anything to the Article 8 claim. The positions of the claimant and his wife are precisely mirrored wherever they live. If they are in Chile she will inevitably suffer from some lack of contact with her English family and friends, but if they are in London the claimant will be similarly disadvantaged. There is no significant economic disadvantage in their living in Chile. The claimant has a useful qualification gained in the United Kingdom, and at the time the evidence was filed in this case was looking for work. There is no reason to suppose that he will not be able to support himself and his wife. She is fluent in Spanish and so faces none of the practical difficulties encountered by those who move to a country and cannot communicate. It is clear that both families are supportive and loving. At present the claimant and his wife are being provided with accommodation by his parents. If they were in the United Kingdom, the expectation, at least in the short term, was that they would be living at her parents' home. Mrs Aguilar's parents have provided evidence of the generous financial support they are making and are prepared to make (a lump sum of £10,000 together with £500 per month) which will provide financial security whatever the opportunities for work in Chile for the claimant, or for Mrs Aguilar herself. In the light of that evidence I am unconvinced that financial constraints would prevent the claimant and his wife from being together at least during all vacations (as has been mooted in her evidence), should she choose to follow the second option and start at Royal Holloway College next September.
- In the language of the Strasbourg Court in Abdulaziz the claimant and his wife have not shown that there are obstacles to establishing family life in Chile. Indeed, they have established their family life there despite a desire to relocate to the United Kingdom. What they contend is that there are special reasons why they should not be expected to establish themselves in Chile based upon the consequences on Mrs Aguilar's educational and potential career opportunities. The claimant accepts that states are entitled to control entry into their territory and further that the ECHR confers no rights upon married couples to choose where they live. He recognises that when he married he had no expectation of being given leave to remain. It is also significant that at the time of the marriage his wife was still at school and in the process of securing a university place, rather than being established in a degree course, the interruption of which would have more immediate consequences. These are all factors that weigh against the conclusion that there is an interference under Article 8(1).
- Whilst recognising that the threshold of engagement (the "minimum level") is 'not a specially high one', as Sedley LJ put it in AG (Eritrea), I am unable to accept that the minimum level has been reached in this case. The difficulties that the claimant's wife will face in her studies if she defers until she is 21, or that she and her husband will both face if she chooses to take up her place next year and there is a period of about 18 months during which they will be separated during term time, do not make it unreasonable to expect her to follow her husband to Chile, given the underlying circumstances in which they married. The claimant and his wife embarked upon married life with their eyes open to the likely consequence of a relocation to Chile, with some consequent disruption. Furthermore, if the claimant and his wife decide to follow the first option (defer Royal Holloway until she is 21) the pessimistic consequences of delayed qualification and employment foreshadowed in Mrs Aguilar's statements are, I think, overstated. She is an exceptionally bright and gifted individual. It is to my mind nigh on inconceivable that she would sit on her hands and not put to very good use her time in Chile. The change in circumstances, whilst temporarily closing one door would open others. If the second option were followed, that is going to Royal Holloway College next year, the period during which she and the claimant would be inconvenienced would be about 18 months. They could be together during university vacations and no doubt the claimant would seek to come to the United Kingdom as a visitor as often as funds allowed. Temporary separation of spouses as a result of pursuing educational or employment opportunities is commonplace. Furthermore, although firmly inclined against pursuing her higher education in Chile at present because of her settled desire to qualify to teach Spanish and English in the United Kingdom, the possibility of Mrs Aguilar's future educational and then professional life taking a different and entirely satisfactory course cannot be discounted.
- Should I be wrong in my conclusion that there is no interference with the Article 8 rights of the claimant and his wife, the question of proportionality under Article 8(2) would arise. Even if the potential educational and associated inconveniences resulting from relocation to Chile in this case in the context of the other matters to which I have referred, achieved the minimum level to qualify as interference for the purposes of Article 8(1), the justifications discussed in the context of the challenges to the policy and rule themselves would, I think, lead to the conclusion that its application in this case was proportionate. Furthermore, in the context of proportionality, in answer to the question posed by Lord Bingham in EB (Kosovo) (see paragraph  above) it is not unreasonable to expect Mrs Aguilar to follow her husband to Chile.
The decision not to apply the exception to the claimant
- The SSHD's willingness to grant leave outside the rules to a spouse when he or his wife is under 21 is expressed as applying when 'there are clear exceptional compassionate circumstances which have not previously been considered and which merit the exercise of discretion outside the immigration rules.' Mr McCullough recognised that if the circumstances in any given case demonstrated that a refusal of leave would entail a breach of Article 8, then the SSHD would be obliged to exercise his discretion outside the rules. That is clearly right, but the exception is not limited to those circumstances.
- The question here is whether the SSHD acted irrationally in failing to exercise the discretion when (a) there was no question that the marriage was forced; and (b) the claimant's wife would encounter the educational problems and their consequences; and (c) the claimant and his wife were the unlucky victims of the rule change. The claimant repeats his arguments advanced under other heads of challenge in support of this contention. In my judgment having concluded that there was no lack of respect under Article 8 demonstrated in this case and having considered all the factual matters placed before her in support of the arguments advanced by the claimant and his wife, it cannot be said that the SSHD acted irrationally in failing to grant leave outside the rules for the claimant to remain in the United Kingdom.
- None of the claimant's challenges to the policy or to its application to him and his wife succeeds. In the event, I grant permission to apply for judicial review, but dismiss the application.