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.
Overall, the High Court found that they could not see a sufficiently rational connection between the legitimate aim of preventing marriages of convenience by people with limited or no leave and the broad measures imposed by the 2004 and 2005 legislation which interfered with the right to marry of all foreign nationals, with no analysis of intention whatsoever.
Is there a current scheme in place to replace the so-called unlawful statute and regulations?
The Court of Appeal upheld the decision of the High Court on the above legislation and also the first stage of further guidance produced by the Home Office which suggested an even more draconian system requiring individuals to have extant leave of at least three months. The only initial positive amendment to this, however, was to allow some discretion in dealing with cases with less than three months’ leave. The fee for the certificate of approval has also risen from £135 to £295 and additional information is requested making it much more similar to applications from people applying from overseas for marriage settlements.
A further Court of Appeal judgement forced the Home Office to amend the guidance once more to allow for applications from those without permission to be in the UK to be considered in the light of detailed information relating to each individual case. There was a provision in this amendment to say that enforcement action could be considered at the same time as otherwise Home Office officials would not be properly carrying out their duty of dealing with illegal immigrants and those who have exhausted all legal procedures. The dispute between the Court of Appeal and the Home Office (i.e. the government) continues on this issue as the government brought the issue before the Supreme Court (House of Lords).