Supreme Court overturns UK”s Ban on non-EU Spouses under 21

October 14, 2011

This week, the Supreme Court ruled that the UK”s ban on non-EU foreign spouses aged under 21 entering the UK on marriage visas is unlawful.

The ban was introduced by the Labour government in 2008 and meant that a foreign partner from outside the European Union, regardless of whether the marriage was genuine or not, could not join their partner in the UK if they were under 21 years old

The Supreme Court held that the rule was in breach of the two concerned couples” rights under Article 8 of the European Convention on Human Rights and Fundamental Freedoms – which encompasses the right to a private and family life.

Two couples affected by the ban had brought the case – Briton Amber Aguilar and her husband Diego, from Chile, and a Briton of South Asian origin, Suhyal Mohammed and his Pakistani wife Shakira Bibi.  Both couples have already been granted marriage visas by the Court of Appeal, which initially found that the ban was unlawful, before the Home Secretary lodged an appeal with the Supreme Court.

Lord Wilson of the Supreme Court said that the government had not shown a sufficient case to justify interference with the right to a private and family life.  The rule was brought in to deter forced marriages, but Lord Wilson stated that “the number of unforced marriages which it obstructs from their intended development for up to three years vastly exceeds the number of forced marriages which it deters.”

In contrast, Immigration Minister Damian Green stated ‘this is another very disappointing judgement, which overturns a policy that exists and is judged to be consistent with the ECHR in other European countries.”  But regardless of his views, the Home Office will now need to amend the Immigration Rules, so that the ban is either entirely abolished, or brought in line with Article 8 rights.

Newland Chase is pleased to assist individuals who may be affected by this judgment and are looking for advice join their spouses in the UK.  Although it may be some time before the immigration rules are changed to reflect this judgement, we are pleased to take instructions from those seeking advice on this subject.