• In the case of R (Quila) v Secretary of State for the Home Department [2011] UKSC 45, a disproportionate breach was found where there is a refusal to provide entry to spouses under the age of 21, particularly a breach of Article 8 of the European Convention on Human Rights (the right to respect for family life).
  • A 4 limb proportionality test was utilised by the court; the court found that the policy didn’t meet the necessary requirements of necessity and balance.

Facts of the Case

  • Cs applied for leave to stay in the UK as spouses of UK citizens.
  • D (the Home Secretary), however, refused Cs’ application on the grounds that the minimum age requirement of 21 under Immigration Rule 277 was not met. The purpose of the rule was to avoid forced marriages.
  • Cs subsequently applied for judicial review and asserted that there was a violation of Article 8 of the European Convention on Human Rights (the right to respect for family life).
  • Cs asserted that the Rule was disproportionate because it was controversial whether the number of forced marriages would be deterred and evidently exceeded the number of unforced marriages.

Issues

  • Did the Home Secretary’s refusal of entry a violation of Article 8?

Held by the Supreme Court

  • The Supreme Court found that the refusals were unlawful and incompatible with Article 8.

Lord Wilson JSC

  • Lord Wilson questions the number of forced marriages that are in actual fact deterred and describes this as ‘highly debatable.’ [58]
  • “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), 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.” [59]

Lord Brown (dissenting)

  • “That is precisely what I am suggesting should be done here: it is the Secretary of State who has the responsibility for combating forced marriages in the context of immigration and who should be recognised as having access to special sources of knowledge and advice in that regard.” [91]

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