The Supreme Court ruled that immigration rules introduced in 2008 to bar foreign spouses from entering the UK if either spouse is under 21 was a disproportionate interference with the right to a family and private life. The case R (On The Application Bibi and another) (Respondents) v Secretary of State for the Home Department was a joint appeal with R (On The Application Quila) (Respondent) v Secretary of State by Theresa May, the Home Secretary.
‘This is a victory for the rights of young people,’ commented Lina Mattsson, pupil barrister at Hardwicke Chambers. ‘The rule had a draconian impact on people who married a partner from outside the EU – as they were either exiled or forced to live apart from their loved one for up to three years. The Supreme Court upheld the decision of the Court of Appeal, declaring that a powerful justification is needed for a policy which has such adverse impact on thousands of genuine marriages.’ The rule affected between 3,500 to 5000 marriages per year.
The cases concerned Bibi and Mohammed, both 18 when they got married in 2008 in Pakistan in a traditional consensual arranged marriage. Mohammed was born in the UK and is a British national. When they got married Mohammed was studying in the UK and was unwilling to move to Pakistan. he couple lived separately until June 2011 when Bibi finally was able to join her husband.
Bibi was granted entry clearance as Mohammed’s spouse after the decision by the Court of Appeal last year. However, the effect of the rule had been suspended awaiting the ruling of the Supreme Court.
Four of five Supreme Court justices rejected the appeal ruling that the ban ‘arbitrary and disruptive’. However Lord Brown of Eaton-under-Heywood said the law was needed to stop forced marriage. ‘Forced marriages are an appalling evil,’ he argued. ‘Most commonly the victims are young women and all too often such marriages occur within the immigrant community. Unless demonstrably wrong, this judgment should be rather for Government than for the courts.’ He warned that it was ‘unwise’ for the courts to use article eight to ‘yet again frustrate government policy’.
Jon is editor of the Justice Gap. He is a freelance journalist. Jon's books include The First Miscarriage of Justice (Waterside Press, 2014), The Justice Gap (LAG, 2009) and People Power (Daily Telegraph/LawPack, 2008). Jon is a journalism lecturer at Winchester University and a visiting senior fellow in access to justice at the University of Lincoln. He is twice winner of the Bar Council's journalism award (2015 and 2005) and is shortlisted for this year's Criminal Justice Alliance's journalism award