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Forced Marriage: that Demned Elusive Age Restriction (19 April 2010)

Date: 19/04/2010
Duncan Lewis, Immigration Solicitors, Forced Marriage: that Demned Elusive Age Restriction

On 15 February 2007, Professor Marianne Hester, Head of the Centre for Gender and Violence Research at the University of Bristol’s School for Policy Studies, delivered a report commissioned by the Home Office. Snappily entitled Forced Marriage: The risk factors and the effect of raising the minimum age for a sponsor, and of leave to enter the UK as a spouse or fiancé(e), the report’s primary recommendation of was:

The age of sponsorship / entry should not be raised
Following a venerable government tradition of ignoring expert advice they themselves have requested (see also reports on drug policy, prisons, and so dismally on) the Home Office decided to raise the minimum age for grant of a visa to a spouse or civil partner, by the simple expedient of amending paragraph 277 of the Immigration Rules. The change was announced by the then Home Secretary Jacqui Smith on 23 July 2008, and implemented on 27 November 2008.

The Home Office’s rationale was that age brings increased maturity, which makes it easier to resist forced marriage. That view was not supported by Professor Hester’s report, nor by other research, which found in fact that in some 70% of cases, the victim was over 21. The Home Office rejected other possible measures, such as the creation of a specific offence of forced marriage.

On 7 December 2009 a High Court challenge to the Rule (Quila v Secretary of State for the Home Department [2009] EWHC 3189) on Human Rights grounds failed – even though the Home Office had accepted that there was not even the slightest suggestion of forced marriage in that case.

However, the limitation only relates to applications under certain of the Immigration Rules. It does not apply to spouses or civil partners of applicants under any limb of the Points-Based System (to whom the old age limit of 18 still applies (see paragraph 35 of the Policy Guidance for PBS Dependants ). Nor does it apply to spouses or civil partners of EEA nationals exercising Treaty rights, which of course are not governed by the Rules.

On 6 April 2010 the minimum age for marriage visas was lowered again to 18 – for serving members of the armed forces and their partners. The accompanying announcement on the UKBA’s website states, enigmatically:

‘This recognises the partners’ role in supporting those on the front line, and reflects the unique circumstances in which the armed forces operate.’

Jacqui Smith’s original press release stated that forced marriage had ‘no place in our society.’ Few would take issue with that; but if the age restriction is intended to deter forced marriage, a series of rhetorical questions insist on rearing their ugly heads. Do highly skilled migrants not enter forced marriages? What are the unique circumstances of soldiers that suggest that their partners should not be protected? And – most obnoxious of all – what justifies greater restrictions young British lovers than on young European lovers?

The answer to the last is, of course, that the European Court of Justice would be loath to endorse such a restriction. It remains to be seen whether, in other pending cases, the Courts, and in particular the European Court of Human Rights, will agree with the High Court in Quila or will take a more rational view. Forced marriage is to be abhorred; but these Procrustean measures may not emerge unscathed from more critical judicial examination.

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