Archives For Spouse visa age

Pun intended

As well as formally lowering the spouse visa age back to 18 through a formal change to the Immigration Rules on 28 November 2011 in response to the Quila case, the UK Border Agency is enabling the review of cases where applications were refused solely on the basis of not meeting the increased age requirement of 21.

The announcement on the UKBA news page is here, the new ‘review of age decisions’ page is here, the review guidance here and the review application form here. If you want to see the formal Statement of Changes it is number HC 1622 and can be found here (it is unusually short and sweet).

You can ask for a review using the free application form if:

  • you received a refusal decision under paragraphs 277, 289AA, and 295AA of the Immigration Rules between 27 November 2008 and October 2011 and
  • the application was refused solely on age grounds and
  • both parties are aged 18 or over

An application for review must be made by 31 May 2012. After that date a new application will be needed and the full fee will need to be paid.

The guidance states that where an appeal is pending and the application was refused solely because your sponsor or you were aged between 18 and 20 UKBA will automatically reconsider your case and you need take no action now. I would suggest taking that advice with a pinch of salt and writing to the relevant ECO or in-country team and asking for a review anyway. The danger is that you will get as far as attending court, instructing a lawyer and so on only to find the decision is withdrawn on the day of the hearing, a colossal waste of everyone’s time and money.

Spouse visa age lowered

Free Movement — 

Pun intended

UPDATE: see later post for information on applying for a review if your case has already been refused.

The Government has announced today that the spouse visa age will be lowered again from 21 to 18. The change will take effect as of 28 November 2011.

The Minister for Immigration, Damian Green, says as follows in his ministerial announcement:

The changes in the Immigration Rules being laid before the House today are as a result of the Supreme Court judgement in R (on the application of Quila and another) (FC) v Secretary of State for the Home Department and R (on the application of Bibi and another) (FC) v Secretary of State for the Home Department [2011] UKSC 45.

On 12 October 2011, the Supreme Court found that whilst they recognised that the Secretary of State was pursuing a legitimate and rational aim of seeking to address forced marriage, a rule (increasing the minimum marriage visa age from 18 to 21) disproportionately interfered with the Article 8 rights of those who were in genuine marriages. Accordingly, the Secretary of State has decided to revert to a minimum age of 18.

The changes will take effect on 28 November and will reduce the minimum age at which a person may be granted entry clearance or leave as the spouse, civil partner, fiancé(e), proposed civil partner, unmarried or same-sex partner of a sponsor, and the minimum age at which a person may sponsor such an application, from 21 to 18 years. It will also delete references to a minimum age of 18 for entry clearance or leave as the spouse, civil partner, fiancé(e), proposed civil partner, unmarried or same-sex partner of a HM Forces sponsor, and the minimum age at which a member of HM Forces may sponsor such an application. Guidance for those affected by the judgment will be published on the UK Border Agency website.

There is no place in British society for the practice of forced marriage. It is a breach of human rights and a form of violence against the victims. That is why the Prime Minister has announced that the Government will criminalise the breach of Forced Marriage Civil Protection Orders and that there will be a consultation on making forcing someone to marry an offence in its own right.

We are also investigating what more we can do to identify and protect those young people who have been placed at additional risk.

You can read the full ministerial statement here for yourself.

This blog has long campaigned for this change since it was first announced. See here for the full list of posts on the subject. The change to the rules will come as welcome relief to the many young couples who have left comments here on the blog.

Effect of Quila

Free Movement — 

UPDATE: SEE LATEST POST.

Following a hell of a lot of confused, confusing and anguished comments on my last post on Quila, I thought it might be helpful to set out my take on the effect of Quila.

The first thing to say is that I would be very wary of any information provided in comments on this blog. Some idiot even left a comment pretending to be from the UK Border Agency. The name ‘Andrew Higgins’ paired with the email address ‘ibrahimsaid@live.co.uk’ was a bit of a giveaway, I thought. There are some people out there trying to be helpful but who may be wrong. There are malicious people out there who just make things up. Then there are some well intentioned people who are just plain wrong. The Good, the Bad and the Ugly, perhaps.

Secondly, officials at the UK Border Agency, particularly the fairly junior officials manning their telephones, will not yet know what the response is going to be to Quila. They should not be giving legal advice over the phone and if they are then the advice may well be wrong.

No one, including the editor of this blog, can give definitive advice on the immediate effect of Quila.

That said, the spouse visa age has certainly not been automatically lowered to 18. The Supreme Court decided that the requirement that both parties to a spouse visa must be 21 or over was a breach of human rights in the two particular cases brought. The court went as far as to say that it would almost certainly be a breach of other people’s human rights in a similar situation, assuming that it could be shown that the marriage was not forced. This does not have the effect of amending the Immigration Rules, though.

The reason for this finding was that the increase in the spouse visa age was a disproportionate means of achieving a legitimate aim, the legitimate aim being to prevent forced marriages.

The UK Border Agency will now need to think about the judgement and will respond in due course. UKBA have a poor record of responding quickly to major judgements, and the Immigration Rules will remain at 21 until they do. They still have not properly responded to Metock (from 2008) nor Zambrano (March 2011), which were respectively years and months ago. The response to the Baiai case in the House of Lords was only just effected, several years later.

While the Border Agency think about what to do, Entry Clearance Officer and Immigration Officers may well continue to apply the old law. The UKBA have a poor record at respecting court judgments and the Immigration Rules remain as they were until they are altered by a formal Statement of Changes. However, if an appeal is lodged and pursued an Immigration Judge will allow an appeal based purely on age.

When the Government does decide how to respond, it may not change the Immigration Rules at all, or it may introduce new restrictions. The reason that the Government lost this case is because the measure was introduced purportedly to prevent forced marriage. The age change is such a rubbish way of achieving that end that many suspect Ministers and officials are not that stupid and actually the change was really about reducing immigration. The current Government has been very open about its desire to reduce immigration. If they announced that they were keeping the increased age in place purely to reduce immigration, that might be very difficult to challenge in court. It would be hard to argue that keeping the increased age is a disproportionate means of achieving the legitimate aim of reducing immigration.

This would be a huge volte face on the part of the Government, particularly after Damian Green’ attack on the judges for allowing more forced marriages to take place.

For what it is worth, I’d suggest getting applications in early. Such applications may be refused on the basis of age, but an appeal would, at the moment, be successful. That situation may change when the Government decides on its response.

The Supreme Court

UPDATE: SEE LATEST POST.

In a judgment just handed down the Supreme Court has by a majority dismissed the Home Secretary’s appeal against the Court of Appeal’s ruling in the case of Quila v Secretary of State for the Home Department [2011] UKSC 45 (on appeal from [2010] EWCA Civ 1482). To put it another way, the Government’s attempt to increase the spouse visa age from 18 to 21 has been ruled unlawful.

The press release and summary can be found here. The full judgment is available here. See here for previous coverage on this blog.

The leading judgment is that of Lord Wilson, a highly respected judge with a family law background that will have brought some useful direct expertise and experience to bear on the case. Lady Hale, Lord Philips and Lord Clarke agree and Lord Brown dissents.

Lord Wilson holds that the effect of the increase int he spouse visa age clearly interferes with the family lives of those affected:

32. These were two British citizens who had lived throughout their lives in the UK and who, aged 17 and 18 respectively, had just embarked upon a consensual marriage. The refusal to grant marriage visas either condemned both sets of spouses to live separately for approximately three years or condemned the British citizens in each case to suspend plans for their continued life, education and work in the UK and to live with their spouses for those years in Chile and Pakistan respectively. Unconstrained by authority, one could not describe the subjection of the two sets of spouses to that choice as being other than a colossal interference with the rights of the respondents to respect for their family life, however exiguous the latter might be.

In what I believe to be a legal first, certainly for the Supreme Court, Lord Wilson then goes on explicitly to disavow and decline to follow the European Court of Human Rights case of Abdulaziz:

43. Having duly taken account of the decision in Abdulaziz pursuant to section 2 of the Human Rights Act 1998, we should in my view decline to follow it. It is an old decision. There was dissent from it even at the time. More recent decisions of the ECtHR, in particular Boultif and Tuquabo-Tekle, are inconsistent with it. There is no “clear and consistent jurisprudence” of the ECtHR which our courts ought to follow: see R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23, [2003] 2 AC 295 at para 26, per Lord Slynn.

This is a very interesting departure from a highly influential Strasbourg decision that is still today regularly quoted by Immigration Judges. A can of worms is potentially opened — what other Strasbourg decisions might the UK decline to follow? — but it is probably a can to which only the Supreme Court holds the opener.

Lord Wilson delves into the statistical ‘evidence’ on which the claim that forced marriages would be prevented. He is critical of it but goes on to accept that the increase in the spouse visa age was rationally connected to the aim pursued, which was the prevention of forced marriage. However, he concludes that the increase in age requirements was far too blunt an instrument which interfered indiscriminately with far too many genuine relationships. He ends his judgment by concluding as follows:

58. [The Secretary of State] clearly fails to establish … that the amendment is no more than is necessary to accomplish her objective and … that it strikes a fair balance between the rights of the parties to unforced marriages and the interests of the community in preventing forced marriages. On any view it is a sledge-hammer but she has not attempted to identify the size of the nut. At all events she fails to establish that the interference with the rights of the respondents under article 8 is justified.

59. By refusing to grant marriage visas to the respondents the Secretary of State infringed their rights under article 8. Her appeals must be dismissed. In line with the helpful analysis of the Upper Tribunal (Immigration and Asylum Chamber) conducted in somewhat similar circumstances in FH (Post-flight spouses: Iran) v Entry Clearance Officer, Tehran [2010] UKUT 275 (IAC) [post about this case here], I consider that, while decisions founded on human rights are essentially individual, it is hard to conceive that the Secretary of State could ever avoid infringement of article 8 when applying the amendment to an unforced marriage. So in relation to its future operation she faces an unenviable decision.

The judgment is more clear cut than that of the Court of Appeal: a clear steer is given that any cases that meet the requirements of the Immigration Rules other for age and where it is established that the marriage is not a forced one should be allowed on human rights grounds.

I note in passing that several references are made to the report by Professor Hester and others that as far as I can ascertain was published here on this blog first, following a Freedom of Information request by the editor.

The Supreme Court

[UPDATE: SEE HERE FOR OUTCOME OF CASE]

Tune in to Supreme Court Live! on the web for live coverage provided by Sky News of the hearing in the Quila case in the Supreme Court. It kicks off at 10.30am this morning, 8 June 2011. This link takes you to the live website. You may want to tune in early as my test run just now revealed that I needed to install a newer version of a Microsoft plugin for my browser.

You might also want to wander over to the UK Human Rights Blog for coverage as one of their editors, 1 Crown Office Row’s Angus McCullough QC, is leading for the Home Office.

Yes, yes, I know...

Permission has been granted to the Secretary of State to appeal to the Supreme Court against the judgment of the Court of Appeal in the case of Quila & Anor v Secretary of State for the Home Department [2010] EWCA Civ 1482, concerning the increase in the spouse visa age from 18 to 21. The appeal has been expedited and is listed for 8 and 9 June 2011.

See previous coverage of the case and topic on the blog here.

In addition, I was almost shocked to see that the Home Office have remembered to ask that the effect of Quila be stayed pending the outcome of the Supreme Court appeal. That request was granted by the Supreme Court. I take back what I said earlier about living in an illiberal democracy.

The Court of Appeal judgment was a bit of a Curate’s Egg. The Court somehow managed to find that the increase in visa age was unlawful in the particular case because it was of a blanket nature but also refused to declare that the rule in question was unlawful. Neither ‘side’ was terribly satisfied by the outcome, although the Quilas were no doubt delighted and relieved.

Yes, yes, I know...

There have been several quite distraught sounding commenters on my previous piece on the outcome of the Quila case, which is understandably causing confusion. I thought it might be useful to set out what I understand to be the current legal position.

The Secretary of State is appealing the Court of Appeal’s decision. The appeal process to the Supreme Court can be a drawn out one. First of all one has to ask for permission to appeal. A panel of Supreme Court judges makes a decision on whether permission should be granted. If so, it can be many months before a hearing is held. A decision on permission is expected in March, apparently.

In the meantime, the law is as it was declared by the Court of Appeal. Or, at least, that is the theory in a liberal democracy where the rule of law is respected. As previously discussed here, the Home Office does not in practice recognise the rule of law and will refuse to recognise the Court of Appeal judgment. Even though this is illegal, individual decisions by Entry Clearance Officers will still be made as if the Court of Appeal judgment did not exist. Anyone who applies where either the applicant or sponsor is under the age of 21 can therefore expect to be refused by an ECO, I’m sorry to say. This is likely to remain the case until the rules are changed, which on previous form is only likely to happen some months after a final outcome is known to the Quila litigation. With Metock, now nearly three years ago, and Baiai, also nearly three years ago, the rules STILL have not been changed.

Refusal of a visa application is not necessarily the end of the matter, though. If there is a right of appeal and it is exercised, what will happen at the appeal hearing? Immigration Judges will, or should, understand that the law is as declared by the Court of Appeal and will attempt to follow it.

The Court of Appeal judgment is not simple, though. The Court did not declare that the new spouse visa age rules were outright unlawful, but did seem to declare that its impact on the individual case was unlawful. This was because of the blanket nature of the ban and the absence of any effort to distinguish genuine marriages from forced ones.

An Immigration Judge will therefore have to assess each case on its merits. If the marriage looks forced the appeal will fail. If it looks to be a genuine marriage, including an arranged marriage, then the appeal should succeed.

I cannot leave the subject without commenting again on the expense that is caused by Home Office lawlessness. It is another example of denying justice to all those who do not understand that they can take a refusal further, cannot afford to do so or end up with poor quality legal advice and representation. It is pungently hypocritical for the Home Office to so vociferously attack some immigrants for breaking the law when the Home Office is itself such a serious and prolific offender.

I need to give the usual disclaimer about specific queries not being answered through comments. It is strongly recommended that anyone caught out by the spouse visa age change should seek good quality legal advice.

Quila appeal succeeds!

Free Movement — 

The Court of Appeal has declared unlawful the application of the increased spouse visa age to the appellants in the Quila appeal. The judgment is available now: Quila & Anor v Secretary of State for the Home Department [2010] EWCA Civ 1482 (21 December 2010)

This blog (and the editor) have campaigned for this rule to be scrapped and can unreservedly welcome the judgment. The dishonesty involved in claiming that this measure was linked to preventing forced marriages was a disgrace, although it should be noted that the Court of Appeal does not agree that there was no rational link between the measure and the end it purported to achieve.

Some choice quotes, the first from Lord Justice Sedley:

57. The Home Secretary’s stance that only a rigid rule will serve the necessary purpose is lastly, in my judgment, undermined by the exception made by amendment in favour of members of the armed services. It is impossible to see, and no reason has been suggested, why the possibility of a forced marriage on which the rule is predicated is any less present among members of the armed services than among the population generally. The introduction of the exception, in our view, makes all but untenable the Home Secretary’s contention that an all-embracing rule, making no distinction of persons, is necessary if the objective is to be met.

Lord Justice Gross agreed:

79. The Respondent’s argument that only a blanket policy is workable, without any exception for a couple such as Mr and Mrs Aguilar, strikes me, with great respect and however sympathetically considered, as an unpersuasive counsel of despair.

The armed forced exception does indeed seem to have undermined the UKBA argument that the blanket increase was necessary.

We can only hope that the current Government will see sense and end this disgraceful episode.

New Immigration Rules have just been laid in Statement of Changes CM 7944. The main change is that the English language requirement for spouses and partners has been introduced, as expected. It takes effect for new applications made on or after 29 November 2010. Those with applications in before that date will have their cases decided under the old rules.

However, a few rather dastardly changes have also been introduced. These only affect small numbers of refugees but, like the extraordinarily grudging changes to the right to work following ZO (Somalia) [2010] UKSC 36, do show that the Secretary of State is not a good loser.

The rules have been altered so that a refugee who has become a British citizen cannot benefit from refugee family reunion rules. The Supreme Court decision in ZN (Afghanistan) [2010] UKSC 21 has been reversed, albeit only for new applications on or after 22 October 2010.

Further, the rules have been adjusted so that a person who entered the UK as the family member of a refugee and has themselves been recognised as a refugee for example through the issuing of a Refugee Convention travel document, also cannot benefit from the refugee family reunion rules. The appeal to the Court of Appeal in MS (Somalia) is due to be heard with a linked case, KI, in a week’s time on exactly this issue. That issue has now been put beyond doubt for applications made on or after 22 October 2010. The outcome in MS and KI will only effect those with applications and appeals already in the pipeline by then.

The numbers of refugees benefitting from these provisions must have been very small. One wonders why the Government is so keen to marginalise these people even more and deprive them of the comfort of being joined by their pre-existing spouses or children. It looks plain nasty to me.

The new Government is making it a requirement that all spouses coming to the UK will need to know a minimum level of English.

That wasn’t in the coalition immigration policy document. I wonder what else they have up their sleeves that wasn’t trailed?

This is a major development, initially proposed by the previous Government in 2007 alongside the increase in the spouse visa age. In 2008 it was announced that this measure would be introduced but no timescale was given. I still have a long overdue Freedom of Information request on this, it suddenly occurs to me, in fact.

But what about elderly spouses (as in, where the couple have been married for a very long time and they are now both old)? Or spouses with learning difficulties? God knows what practical arrangements they will propose. How do they propose to verify this in an objective way? Will they start approving certain colleges in foreign countries? It isn’t exactly as if UKBA have made a great success of the Points Based System over here…