April 10, 2006: Sham Marriage Law Breaches Rights
Last Updated: Monday, 10 April 2006, 11:51 GMT 12:51 UK
Sham marriage law breaches rights
By Dominic Casciani
BBC News community affairs
Arrests: Suspected sham marriage targeted
Tough government rules to prevent sham marriages discriminate against immigrants, the High Court has ruled.
In a significant defeat for the government, Mr Justice Silber said the rules were unreasonable and breached human rights.
Campaigners said the law was discriminatory because it effectively labelled some immigrants as fraudsters.
The judge gave leave to appeal – but the Home Office has partially suspended the rules while it considers its case.
However, Mr Justice Silber's “declaration of incompatibility” against the rules is the most severe defeat the courts can inflict on the government on human rights grounds.
It means ministers must return the law to parliament or take other steps to make sure it is fair.
The rules, introduced in February 2005, mean people born outside the EU and some bordering European nations who have only six months' permission to be in the UK must seek special permission from the Home Office to marry, irrespective of the status of their partner.
SUSPECT MARRIAGES REPORTED BY REGISTRARS
Note: 2005 figures incomplete; new law came into force in February. Source: Home Office
The application costs 135 and only 76 specially selected register offices can deal with the proposed marriage. If the home secretary refused permission to marry, there is no right of appeal, other than to apply to the High Court.
The only exemption is for people who marry in the Church of England.
Even before the law was launched, campaigners for immigrants attacked it as discriminatory, predicting that it would face court challenges.
They said the practical effect of the measure was to label all those who applied for permission as potential fraudsters, without the merits of their individual circumstances being assessed.
The first of the three test cases involved a foreign national from outside Europe who wanted to marry someone from within the “European Economic Area” (EEA) who was legally living in the UK.
Mahmoud Baiai, an Algerian, and Izabella Trzcinska, from Poland, were refused permission to marry by the Home Office and they launched a legal challenge.
The two other cases related to asylum seekers, including one whose case had been turned down but wanted to marry someone already given protection as a refugee.
In a summary of his judgement, Mr Justice Silber said that the case focused on whether the government's right to control immigration and fight illegality had resulted in laws that unfairly breached the rights of those coming under the spotlight.
The judge said that he found the regime to be incompatible with human rights law because people who wanted to marry within the Church of England were not subject to the same scrutiny as those choosing another type of wedding.
People seeking to marry within other faiths, principally other branches of Christianity, Hinduism, Islam or Sikhism, were not given a similar benefit of the doubt where ministers of religion were content the proposed wedding was genuine.
Ruling that the measures breached human rights on grounds of nationality and religion, Mr Justice Silber said there was “no adequate justification” for the marriage regulations to be used to control immigration.
Lawyers for the home secretary had argued that the exemption for the Church of England was valid because there was no evidence of any sham marriage rackets attempting to use Anglican ceremonies.
Amit Sachdev, a solicitor representing two of the claimants, said that the law was the first time that a British government had sought to restrict the right to marry.
“Sadly, this Act once again shows the government's abject failure to respect the human rights of immigrants,” said Mr Sachdev.
“This Act was a knee-jerk reaction based on speculation rather than evidence. The House of Lords complained that the Act had not received proper scrutiny. By this judgement, their concerns have proved correct.
“A vast majority of British and European citizens [caught up by the rules] have been complaining that this law brought pain, suffering, humiliation and misery to them.”
A Home Office spokesman said ministers would consider an appeal. Until then, they would comply with the ruling by introducing revised guidance and suspended decisions on any cases that would have faced a rejection.
Nobody knows the scale of sham marriages, although senior registrars suggested that before the new legislation there could have been at least 10,000 a year.
Registrars at Brent Council in north London, one of the most diverse areas of Britain, suggested in 2005 that a fifth of all marriages there were bogus, with officials able to spot couples who barely knew each other.
One 2005 case saw 25 people jailed for a sham marriage network stretching from London to Leicester.
According to Home Office figures, sham marriages had been rising before the new law – and fell dramatically when it was introduced.