The JCWI challenge to the increase to the spouse and partner visa age from 18 to 21 has been dismissed: Quila v Secretary of State for the Home Department  EWHC 3189 (Admin) (07 December 2009).
For previous coverage of this issue on Free Movement, click here.
There will certainly be an appeal and at least two other judicial review applications were stayed behind Quila, which may now be joined together for a broader consideration of facts and issues – including consideration of Article 12, the right to marry, which did not arise in Quila. For anyone caught by this policy, the timescale for an appeal will be at least several months. The various teams have been good enough to keep me updated so far and I’ll post more information if I hear any.
Interestingly, at paragraph 22 Mr Justice Burnett notes that ‘[t]he attack on the rationality of the new policy, and thus also its proportionality, has been founded substantially upon the conclusions of a research project headed by Professor Marianne Hester of Bristol University.’ That research report was first published in full here on Free Movement. He goes on to find as follows:
In my judgment, the SSHD cannot properly be criticised for treating the conclusions of the research with caution. On its face, as it seems to me, the report identifies many of the problems it encountered. If, as the authors recognise, a large number of those providing information were suspicious of the motives underlying the suggested change of policy and there were difficulties in conveying a clear definition of ‘forced marriage’ to those being consulted, the results of research are likely to be of restricted value. The various reasons given by the SSHD for treating the research with caution are, in my view, entirely coherent.
This rather ignores the fact that the Forced Marriage Unit, UKBA itself, police forces and other key stakeholders thought that there were substantial risks to potential victims of forced marriage if the visa age were increased.
The research report may have ended up being something of a distraction from the real issues, in the end. Forcing a young couple to live abroad increases the individual risk of one of the parties being trapped in a forced, abusive marriage. At least if you are physically in the UK there is a chance of access to help. Fat chance abroad, frankly. The research report very strongly arguably supports that argument, but the problems with conducting research in this difficult area should not detract from the force of the basic premise.
The reasoning in relation to Article 8 is wide open to further challenge and the judge does not seem to have engaged with many of the arguments advanced by the claimants’ team. The finding that there was no interference is very susceptible to challenge and the argument runs that if Article 8 is engaged, then justification is needed for interference and there is no rational justification in the individual case. The argument should not get as far as whether the interference is proportionate or reasonable.
This certainly isn’t the end of the litigation on this issue.