Exercise 1C. Law and Power

An important function played by the law in modern day societies is restraining government agencies from abusing the powers that they have over us. This is normally done through the remedy of judicial review, which is available when a public body has:

(1) exercised its powers for an improper purpose; or

(2) exercised its powers without taking into account all considerations relevant to how those powers should be exercised; or

(3) exercised its powers in a wholly unreasonable way; or

(4) exercised its powers against someone without giving him or her a fair hearing to allow them to make representations about how those powers should be used;

(5) exercised its powers in a way that has, for no good reason, disappointed other people’s legitimate expectations as to how those powers would be used;

(6) exercised its powers without being open about the reasons why it was exercising those powers;

(7) exercised its powers in a way that is inconsistent with the European Convention on Human Rights, and therefore unlawful under the Human Rights Act 1998.

The case of R (on the application of Aguilar Quila) v Secretary of State for the Home Department (2011) provides us with an example of the law on judicial review in action. (The convoluted title to the case illustrates a point about judicial review – that the application for the judicial review is technically brought in the name of the Crown, which wants to ensure that its servants are acting properly. But it is an individual who has to make the application.)

In the Quila case, A was a British citizen living in England. When she was 15, she met Q, a Chilean citizen, while he was staying in the UK with his parents. They struck up a relationship that got serious when Q later came back to the UK under a student visa. At that point, A was 16 years old. Almost as soon as Q came back to the UK, A and Q got engaged, and they were married within the year, when A was 17 years old.

Q applied for a visa entitling him to stay in the UK after the expiry of his student visa, on the basis that he was now married to a British citizen. His application was turned down. This was pursuant to rule 277 of the Statement of Changes in Immigration Rules 1994, under which a foreign national seeking leave to enter or stay in the UK as the spouse of someone lawfully resident in the UK would not be permitted to do so if either party to the marriage was under 18. The purpose of this rule was to tackle the evil of ‘forced marriages’ where, for example, a family living in the UK would force their 16 year old daughter to marry a foreign national for the purpose of entitling him then to stay in the UK as her husband. When A turned 18, Q reapplied for a visa, but was turned down again on the basis that rule 277 had been amended to say that a visa would not be given where one of the parties to the marriage was under 21.

A and Q applied for judicial review, arguing that applying rule 277 to their case, now that A was over 18, violated the European Convention on Human Rights, and was therefore unlawful under the Human Rights Act 1998. It was admitted on all sides that A and Q’s marriage was very opposite of a ‘forced marriage’: they were completely in love. But the Home Office was applying rule 277 across the board to all cases of marriages where one of the spouses was under 21, on the basis that this would stifle the practice of ‘forced marriages’ and that any other measure (such as interviewing spouses to make sure their marriage was not ‘forced’) would not be cost effective. The fact that applying rule 277 in such a blanket way would get in the way of some legitimate couples being together was a regrettable side effect of the Home Office’s attempt to deal with the problem of ‘forced marriages’.

A and Q argued that this was not good enough. Under Article 8 of the European Convention on Human Rights, they had a right to ‘respect for [their] private and family life’ which could only be abridged if doing so was ‘necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.’ A and Q argued that, now that A was 18, applying rule 277 to their case: (1) interfered with their private and family life and (2) could not be justified as ‘necessary’ to protect ‘the rights and freedoms of others’. There was no dispute that (1) was true. The whole case turned on whether (2) was true. If it was, then the Home Office had violated A and Q’s rights under Article 8 of the European Convention on Human Rights by applying rule 277 to their case, with the result that the refusal to grant Q a marriage visa to stay in the UK would be overturned.

Whether (2) was true or not turned on the issue of ‘proportionality’. Given the interference that would be caused to legitimate couples’ private and family life as a result of the blanket application of rule 277, could the blanket application of rule 277 to cases like A and Q’s be justified as a proportionate means of pursuing the legitimate aim of protecting the ‘rights and freedoms’ of under 21 year olds who might, in the absence of rule 277, be pressured by their families into marrying someone they had never met in order to allow that person to enter the UK?

The case went to the UK Supreme Court. The Supreme Court ruled, by a majority of 4 to 1, that the blanket application of rule 277 to A and Q’s case could not be justified, mainly because the Home Office had not provided any evidence as to how many forced marriages might be prevented or discouraged as a result of applying rule 277 to marriages where one of the spouses was over 18, but under 21.

Baroness Hale was in the majority. Here are some excerpts from her judgment:

I agree that the Secretary of State has infringed the Article 8 rights of the parties to the marriages with which we are concerned.

In today’s world, it is recognised that everyone has the right to decide whether or not to enter a particular marriage. Article 23.3 of the International Covenant on Civil and Political Rights (ICCPR), in an exact echo of Article 16.2 of the Universal Declaration of Human Rights, requires that ‘No marriage shall be entered into without the full and free consent of the intending spouses’. ‘Full and free’ means that the marriage should be entered into without improper pressure of any kind. Equally, it is recognised that anyone of marriageable age is free to marry whom they choose. The right to marry is just as important as the right not to marry.

The justification claimed [for rule 277] is that this measure will prevent, deter or delay forced marriages. This is undoubtedly a legitimate aim, in Article 8 terms, ‘for the protection of the rights and freedoms of others’. The sole question is whether it was ‘necessary in a democratic society’, in other words, whether it was a proportionate response to a pressing social need. There are many reasons to conclude that it was not.

First and foremost, although nobody knows the figures, it is clear that the rule will interfere with many more entirely voluntary marriages than it will prevent, deter or delay forced marriages. The scale and severity of the impact upon these unforced marriages has scarcely been considered. Nicola Smith, in her first witness statement on behalf of the Secretary of State, says that it was considered carefully, but the reasoning was that, as only a small proportion of foreign spouses are from this age group, the impact was proportionate. No one has said: ‘We know that many innocent young people will be caught by this rule but we think that the impact upon them will not be so great while the protection given to victims of forced marriage will be so much greater’. There are, of course, circumstances in which the imposition of a ‘blanket’ rule can be justified. In this case, it is understood that individualised decisions may create their own problems, because taking steps to determine whether or not the marriage is forced may exacerbate the risks to the reluctant spouse. But, as the House of Commons Home Affairs Committee has pointed out, the Government has a mechanism to help reluctant sponsors.

Secondly, it is entirely unclear whether the rule does have the desired effect upon the marriages which it is designed to prevent or deter. Karma Nirvana [the main NGO concerned with the problem of ‘forced marriages’] gave evidence that some girls ringing their helpline have found it helpful to be able to say to their families that they will not be able to sponsor an immigrant spouse until they are both 21. But there is also evidence that the desire to obtain a visa is not the predominant motive for forcing a child into marriage. We have no idea how many forced marriages with non-resident spouses have been deterred. We have no idea how many forced marriages with resident spouses have been substituted for those which have been deterred. We do know that the rule can have no effect at all upon the forced marriages which take place within this country or within the European Union.

Thirdly, we also know that if the rule is not effective in preventing a forced marriage it may do a great deal more harm than good. A young woman may be sent abroad and forced to marry against her will and kept there until she can sponsor her husband to come here. During this time she may be raped many times, bear children she does not want to have and be deprived of the education and life which she would otherwise have had here. Even if she is allowed to come home, she will not be able to escape from the marriage. She will be obliged to stay married so that she can sponsor her husband to come here. The rule will have made her life more difficult.

It is scarcely surprising that the views of knowledgeable people and organisations are so divided. While Karma Nirvana support the change [from the former rule, under which a marriage visa would be denied where one of the parties to the marriage was under 18, to the present rule, where the visa would be denied where one of the parties to the marriage was under 21], Southall Black Sisters and the Henna Foundation do not. In 2008, the Home Affairs Committee concluded, at para 111, that there was not sufficient evidence to determine whether it would have the desired deterrent effect. Given the potential risks involved, it urged that the age should not be raised without further research and conclusive evidence. There certainly was no conclusive evidence when the change was made. The Department had previously commissioned research from Bristol and Manchester Universities, which found that the change would be unlikely to prevent forced marriages, and indeed might increase the risk of negative actions associated with the increased age. The Department concluded that, because of methodological difficulties, these findings should be treated with caution and not regarded as representative. They went on to publish their own consultation paper. Six months later, they published their conclusions. Clearly, those who choose to respond to consultation papers are even less representative than the organisations, individuals and focus groups who were chosen for the purpose of the academic research. Even so, the response was hardly a ringing endorsement: 15 of the 29 individual respondents supported the change, the organisations were evenly divided between supporters and opponents and three organisations had mixed views. None of this amounts to a sufficient case to conclude that the good done to the few can justify the harm done to the many, especially when there are so many other means available to achieve the desired result.

Lord Brown dissented from the majority judgment. Here are some excerpts from his judgment:

Forced marriages are an appalling evil. Most commonly the victims are young women and all too often such marriages occur within the immigrant community. One reason for this, amongst several identified by the National Centre for Social Research (NCSR), is that: ‘Forced marriage can be a way of ensuring land, property and wealth remain within a family. It may take place because of a long-standing family commitment or to appease an aggrieved family member. This is often associated with assisting a claim for UK residency and citizenship’.

One way of seeking to combat this aspect at least of the problem of forced marriages has been by raising the age at which a UK national or settled resident can sponsor a fiancée or spouse seeking admission to this country (and also the age at which a fiancée or spouse may gain entry).

There is before this court information about the practice of other EU countries which impose minimum ages for marriage visas. Germany, Austria and the Netherlands impose an age requirement of 21 for both parties (including their own citizens) precisely as the UK does. Belgium is planning to have the identical rule (although at present it does not apply to Belgian citizens or EU nationals). Denmark has the same rule except that it imposes a minimum age requirement of 24 rather than 21.

Now it is of course obvious that this rule has significant disruptive effects on many young couples whose actual or proposed marriages are entirely voluntary – indeed, the very substantial majority of those affected. Predictably these couples, whether or not they marry, will be kept apart or have to live abroad.

It is also perfectly true that, certainly at the time this measure was introduced in November 2008, there had been little in the way of research to indicate just how far the rule would help in combating forced marriages. As, indeed, the 2011 Home Affairs Committee Report noted: ‘We have not seen sufficient evidence to determine whether or not raising the age of sponsorship would have a deterrent effect on forced marriage. Given the potential risks involved, we urge the Government to ensure that any changes it proposes to its policy on visa application procedures in respect of sponsorship are based on further research and conclusive evidence as to the effect of those changes.’

The unfortunate fact is, however, that, by the same token that the full extent of the problem of forced marriage is impossible to gauge. The reason forced marriages are hard to detect is, of course, that victims inevitably risk yet further serious harm and suffering if they reveal the true facts. A judgment call is therefore required. Or is it to be said that the whole matter is all just too difficult and uncertain and that the Secretary of State is therefore disabled from taking the course adopted by those other EU countries which share her view on the best way forward (although not apparently from increasing the sponsoring age from 16 to 18 as was earlier done)?

It seems to me that this court’s duty is to decide the appeal, not by a reference to the sufficiency or otherwise of the research carried out by the Home Office before the new rule was introduced, but rather by reference to the proportionality as perceived today between the impact of the rule change on such ‘innocent’ young couples as are adversely affected by it and the overall benefit of the rule in terms of combating forced marriage. In the light of all the material now before this court, I find it hard to see how this court can properly strike down the rule as incompatible with Article 8 .

The extent to which the rule will help combat forced marriage and the countervailing extent to which it will disrupt the lives of innocent couples adversely affected by it is largely a matter of judgment. Unless demonstrably wrong, this judgment should be rather for government than for the courts. Still more obviously, the comparison between the enormity of suffering within forced marriages on the one hand and the disruption to innocent couples within the 18–21 age group whose desire to live together in this country is temporarily thwarted by the rule change, is essentially one for elected politicians, not for judges. Baroness Hale suggests that: ‘The right to marry is just as important as the right not to marry.’ But she cannot possibly mean by this that the postponement by up to three years of a couple’s wish to live together as man and wife in this country involves just as great a violation of human rights as a forced marriage. What value, then, is to be attached to preventing a single forced marriage? What cost should each disappointed couple be regarded as paying? Really these questions are questions of policy and should be for government rather than us.

Article 8 is a difficult provision which has already led to some highly contentious, not to say debateable, decisions. Upon that I am sure we would all agree. In a sensitive context such as that of forced marriages it would seem to me not merely impermissible but positively unwise for the courts yet again to frustrate Government policy except in the clearest of cases. To my mind this cannot possibly be regarded as such a case.

Summarise each judgment in not more than 300 words each. Whose judgment do you find more convincing?

It could be argued – as Lord Brown does – that the Quila case shows that the courts are now misapplying the law on judicial review. Instead of using judicial review as it should be used – to prevent governmental abuses of power – the courts are now using judicial review to dictate to the government how it should behave. This accusation was pursued by Jonathan Sumption, now a Supreme Court Justice, in a lecture delivered shortly before he became a member of the Supreme Court. Here is an edited version of the lecture:

Sumption, ‘Judicial and political decision-making: the uncertain boundary’ (F.A. Mann Lecture, 2011)

For a critical response to the lecture (edited down slightly), read:

Sedley, ‘Judicial politics’ (first published in the February 2012 London Review of Books)

Next page: Exercise 1D. Law and Morality