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Lords judgment: R (Baiai) v Home Secretary

The other interesting judgment from the Lords in what Joshua Rozenberg thinks must have been a record output yesterday was in R (Baiai) v Home Secretary. This case is about section 19 of the Asylum and Immigration (Treatment of Claimants) Act 2004 and the government’s attempts to prevent “sham marriages” – those entered into in order to avoid immigration restrictions, for instance where an EU citizen marries a non-EU citizen who might otherwise not be able to stay in the UK. Section 19 requires that a person subject to immigration control must get the Home Secretary’s permission before a registrar can marry them.

We knew section 19 would have to change, in any event: the government had already accepted the judgment of the courts below that it discriminates contrary to the article 14 Convention right and within the ambit of the article 12 right to marry, because it only requires permission for those not marrying in the Church of England.

Well, section 19 survives; the Lords have decided that requiring prior permission for those subject to immigration control is compatible with the right to marry. But the Lords have found compatibility by reading section 19 in a way that outlaws what the government’s practical policy has been so far.

What the government had done was issue instructions telling officials to refuse permission unless applicants had been granted leave to enter or remain for at least 6 months, and had at least 3 months of that leave remaining. The idea was, as the government admitted, not to investigate to find out whether any proposed marriage was genuine or sham, but to deter sham marriages by the procedural hurdle of having to seek permission (and by charging a pretty substantial fee), and to apply a rule of thumb intended to weed out most sham marriages.

Lord Bingham said that article 12 protects genuine marriage, not the right to secure personal advantage via a marriage ceremony. But the government’s policy breached article 12 because it gave or denied permission applying criteria that did not relate to the genuineness or otherwise of the marriage in question. As Lady Hale said (in another “heart on sleeve” speech in which she was clearly unsympathetic to the government and managed to bring in Auden and Thomas Mann), the rule of thumb was not rationally aimed at the government’s target.

Paragraph 32 is where Lord Bingham sets out what section 19 must be read as meaning; he doesn’t mention section 3 of the Human Rights Act, but presumably it’s what he’s relying on to read the Act in that way.

I’m quite interested in this. First, because, applying the leading case of Ghaidan v Godin-Mendoza, I don’t think it’s really necessary to spell out in terms what you might call the “amended language” of a section as it needs to be read. Lord Bingham could simply have said it permitted refusal only on the grounds that the marriage appeared to be sham.

Second, I think the same legal result could have been achieved without the Human Rights Act. Wasn’t Lady Hale also saying (whether or not she meant to) that the policy was irrational, under normal judicial review principles, in the way the rule of thumb missed the target? And because the 2004 Act was clearly intended to prevent sham marriages, wouldn’t the principle in Padfield, that a minister must exercise discretionary powers in way which promotes, and does not thwart the policy and object of the Act which confers them (see Lord Reid’s speech especially), mean that permission needs to be granted or refused on grounds relating to the genuineness of the marriage? Just a thought.

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