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21 Minimum Age Limit for Spouse Visas overturned?

The Court of Appeal, in the case of Quila and others v Secretary of State, has dealt a severe blow to the 21 years minimum age for applicants for UK spouse, civil partner and co-habitee visas.

They have ruled that the amendment to the Immigration Rules was a disproportionate interference with family life - protected by Article 8 of the European Convention on Human Rights.

Sedley LJ, who made the leading judgment, did not strike down the rule completely. He ruled that it was a breach of human rights where there was a British spouse or partner.  It cannot now be used to refuse such cases.  He left open the question of whether the age rule might still be legal where there was a settled spouse who was not British.  However, even in those cases, the negative comments on the rule made by the Court mean that it is unlikely that it can stand.

Pitchford LJ said:

“In the present cases there is no doubt that family life was established. Further, each sponsor was a British citizen; each spouse contemplated marriage at a time when compliance with rule paragraph 281 of the Immigration Rules was assured or virtually assured (this is not, in other words, a case in which an applicant has abused the asylum process for the purpose of establishing ties in the host country); while no insurmountable obstacles to the enjoyment of family life in the applicants country of origin existed, the effect of refusal was, as Sedley LJ has cogently pointed out, either exile of a British national or disruption of family life (I find it perplexing that Mr and Mrs Aguilar may live lawfully in the Republic of Ireland but not in the United Kingdom); while there are factors of  immigration  control (discouragement of forced marriages) which purportedly justify rule 277, the application of rule 277 to the circumstances of these particular appellants and many like them is arbitrary in effect. For these reasons I join Sedley LJ in his conclusion that the application of rule 277 to the appellants interfered with their right to respect for family life under Art 8.”

We will now have to wait and see whether the Government tables changes to the rules to abolish the age provision.  It is not known whether they will appeal to the Supreme Court.

QUILA v SSHD [2010] EWCA Civ 1482

This case was on Rule 277 which had been amended to raise the age at which a spouse could come to the UK from 18 to 21.  The Court of Appeal considered this and was unanimous in saying that, whilst they could not strike down the rule completely, the effect in the cases under consideration was disproportionate and the appeals were allowed.

Sedley LJ, who made the leading judgment, did not strike down the rule completely only because they were dealing in the cases under consideration with marriages where one spouse was British and there might be arguments that visas could still be refused where both spouses were only settled and not British.

Pitchford LJ said:

“In the present cases there is no doubt that family life was established. Further, each sponsor was a British citizen; each spouse contemplated marriage at a time when compliance with rule paragraph 281 of the Immigration Rules was assured or virtually assured (this is not, in other words, a case in which an applicant has abused the asylum process for the purpose of establishing ties in the host country); while no insurmountable obstacles to the enjoyment of family life in the applicants country of origin existed, the effect of refusal was, as Sedley LJ has cogently pointed out, either exile of a British national or disruption of family life (I find it perplexing that Mr and Mrs Aguilar may live lawfully in the Republic of Ireland but not in the United Kingdom); while there are factors of  immigration  control (discouragement of forced marriages) which purportedly justify rule 277, the application of rule 277 to the circumstances of these particular appellants and many like them is arbitrary in effect. For these reasons I join Sedley LJ in his conclusion that the application of rule 277 to the appellants interfered with their right to respect for family life under Art 8.”