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 ‘firstname.lastname@example.org’ 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.