What were the rules under the Asylum and Immigration Act 2004?
The most restrictive immigration provisions on the right to marry apply to people with limited leave, no leave or recognised refugees. The current system was introduced under Asylum and Immigration (Treatment of Claimants etc) Act 2004, sections 19 to 25, in conjunction with the Immigration (Procedure for Marriage) Regulations 2005.
This regime requires any non-EEA national who is settled in the UK or does not have entry clearance specifically for marriage to obtain the consent of the Secretary of State to marry. The person must also pay for a certificate approval for the marriage. If both parties require consent, then both must apply for, and pay for, the certificate of approval.
What did the Parliamentary Joint Committee on Human Rights decide about the 2004 scheme?
It was found by the Parliamentary Joint Committee on Human Rights that such a system could ‘be incompatible with the right to marry because it introduces restrictions on that right for a wide class of people (i.e. all people with limited/no leave plus recognised refugees) which are disproportionate to the legitimate aim of preventing sham marriages (i.e. marriages purely for the purpose of staying in the UK) and which may impair the very essence of the right.’
What new regulations were introduced in 2005?
One result of this was that the Registration of Marriages (Amendment) Regulations 2005 prescribed 76 registry offices in which people subject to immigration control must give notice of their marriage together with their partner. Though this notice must be given in notice at a registry office, the marriage would not have to take place at this location. However, these Regulations were criticised for effectively exempting Church of England marriages from the certificate of approval scheme as this would only apply to marriages performed by registrars. This could be seen as discrimination on grounds of religion or belief, or on grounds of nationality.
The Churches Commission for Racial Justice looked into the distress caused by the 2005 regulations. They found out about people who had undertaken religious marriages outside the Christian faith and then had a certificate of approval for a registry approved marriage. Worse still, these couples were not always notified of this straightaway. Undesirable situations such as this made the prospect of legal challenge to these 2005 regulations inevitable.
What did the High Court decide on the issue of the right to marry in 2006?
The High Court looked at three separate cases in 2006 (Baiai and Trzcinska; Bigoku and Agolli; Tilki) and made the following observations on the right to marry. In all three cases, the certificates of approval had been denied to one or more individuals. The High Court decided that the interference with these individual’s Article 12 right to marry was disproportionate with the national policy for preventing sham marriages and also that the Article 14 rights of the people involved in these cases were breached; there was unjustified discrimination taking place on grounds of religion and nationality.
The High Court decided that the 2004 scheme, together with the 2005 regulations was unlawful under Human Rights Act section 4 because the scheme:
- regarded all marriages by someone under immigration control and requiring a certificate of approval, as marriages of convenience (actually or at least potentially) discriminated irrationally in favour of Anglican marriages failed to take into account any evidence against the argument that the marriage is not a sham made the immigration status of any non-EEA national the only factor in deciding their right to marry did not allow those involved to make any representations about their case.
For more information on:
- Is there a current scheme in place to replace the so-called unlawful statute and regulations?