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.