Certificates of approval and the Baiai case

UPDATE 19/4/09: The Home Office has stopped charging for Certificates of Approval. They say their policy is under review and they say they are “carefully considering the implications for those who have already paid a fee and will shortly announce its policy in this respect”. More to follow when anything concrete is announced.

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The Home Office has finally published guidance for couples wanting to get married in the UK who are subject to immigration control and do not possess indefinite leave to remain. For some reason they sneaked it out on 19 June 2007 and it has only just been spotted by quite a few lawyers, myself included.

What reason could there possibly be for them sneaking out such a long-awaited and important piece of guidance? I’m sure it is nothing to do with the publicity that might be generated by such an obvious climb-down from their original position, forced on them by three linked judgments of the High Court (one, two and three) then the Court of Appeal.

Essentially, the Home Office introduced a scheme commencing in 2005 which required all those subject to immigration control and not in possession of indefinite leave to remain to apply for permission to get married (or entering a civil partnership) and permitting them to get married only at certain designated registry offices. Unless the applicant had been granted six months leave to enter and still had three months left to run or could show exceptional circumstances, the application (costing £135, incidentally) would be rejected.

The High Court then the Court of Appeal held that the scheme was disproportionate and discriminatory under Articles 12 and 14 of the European Convention of Human Rights. The reasoning was, in summary, that the scheme, which affected an enormous number of genuine, loving couples and prevented them from getting married, was disproportionate to the intended purpose. This purpose was to prevent abuse of immigration control through sham marriages, but the purpose could be fulfilled by far less intrusive means that did not effectively presume that anyone not settled in the UK and wanting to get married must be doing so for immigration purposes.

The amended scheme allows couples to establish that theirs is a genuine relationship. This is something they have to do anyway if they are going to make an application under the immigration rules (see previous post on this subject) or stand a chance of succeeding on a human rights application outside the rules. If you are considering making an application, the suggested means of proving your love and devotion is to provide the following information:

• when, where and how you and your fiancée(e)/proposed civil partner met
• when you decided to marry or enter into a civil partnership
• where you intend to live if permitted to marry or to enter into a civil arrangements for any religious ceremony, including the nature of the ceremony, the person conducting it and relevant contact details
• arrangements for any reception or celebration, including details of the location, proof of booking and relevant contact
• your relationship with your fiancé(e)/proposed civil partner if you are not living together (e.g. letters and photographs as evidence of the relationship)
• your life with your fiancé(e)/proposed civil partner if you are living together, including the address(es), how long you have lived together and documentary evidence in the form of correspondence addressed to both of you at the same address from utilities, government bodies, local authorities, financial institutions etc
• any children from your and your fiancé(e)/proposed civil partner’s present or previous relationships, including where they now live, the length of time any of them have lived with you, the names of their natural parents and who supports them
  contact telephone numbers for yourself and your fiancé(e)/proposed civil partner in case an officer wishes to contact either of you
• any additional information about yourself and your fiancé(e)/proposed civil partner which you would like us to know about, and/or any additional supporting evidence or documentation which might help your application.

The information has to be presented in affidavit form (a type of witness statement), which means lawyers need to be involved. This is entirely unecessary in my view and only adds to the cost, and I cannot see what benefit accrues to the Home Office or the scheme from this requirement.

Yet again, what a palaver. At least there’s a little more certainty out there now, though. As usual, the Home Office insisted that the judgment was not good law while they were appealing the decision, whereas in cases where the Home Office win and someone else appeals, they almost always insist that the judgment under appeal is good law and must be enforced.