Quila and the spouse visa age

Free Movement — 

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.

Free Movement

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The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.

10 responses to Quila and the spouse visa age

  1. Well my daughter and her hubby are going to give it a try hopefully they will be applying soon when all the docs are sorted. We do expect a refusal and to have to then start the appeal. She will probably be 21 before they get justice!! I just hope that not many other couples have to go through what my daugheter has its heartbreaking for them both.

  2. Jane Heybroek
    BeautifulBurnout 23 February 2011 at 7:29 pm

    Ahahahahahahahahahah!

    It’s good to have you back in the harness, FM. :o)

    • Jane Heybroek
      BeautifulBurnout 23 February 2011 at 7:31 pm

      Hmmm… except blockquote didn’t work quite how I expected. Pesky HTML…

      Try again:

      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.

  3. Hi i am 20 years old and within the next week i will apply and see how things go! i really do hope they dont refuse it and hold on to it while they make a decision or it will help the court! i am so disappointed with this age limit thing! i really want my husband to be with me and help raise my daughter. not only is he missing out on seeing his daughter but she misses out on his parental love! its been 2 years we have got married and i just cant seem to move on without him! i just pray that they will change it back to 18 and make my life and complete one!

  4. If you explain the subjective circumstances of the case and make reference to Quila, then they appear to be granting now. Had two come through in a week.

    • is this true… i haven’t given any sort of reference but did state in my covering letter about me hearing about all this.. i have given as much evidence of our genuine love for each other!!! my husband submitted his application today! so fingers crossed.. just wondering if anyone else has applied and got their visa?

    • It also suprised us as we had already prepared the clients to possibly expect having to appeal this through the courts. We ensured we relied heavily on the comments made in Quila about blanket policies and then explainied in detail the facts of the individual case with affidavits etc. Certainly a pleasant surprise.

  5. golly what is up with folk . Lets hope it stays at 21 so many young kids with no idea what they have let them selves in for when coming to UK at such a young age . Why choose such a young kid for a future spouse wait til they are old enough to know their mind

    • You may not be far from right folk. Should we say that the same rule should exist for everyone and not migrants only? Why make the rule for migrants outside the EEA block only? Or EEA and Brits @ 18yrs are more matured than their fellows from other parts of the world? What’s good for the goose is equally good for the gander, mate!