17 November 2008

FOURTH SECTION
Application no. 34848/07
by Sinead O’DONOGHUE & OTHERS
against the United Kingdom
lodged on 31 July 2007
Statement of Facts
THE FACTS
The first applicant, Sinead O’Donoghue, was born in 1974 and has dual Irish/British nationality. The second applicant, Osita Chris Iwu, was born in 1979 and is a Nigerian national. The third applicant, Ashton Osita Iwu‑O’Donoghue and the fourth applicant, Tiernan Robert O’Donoghue, were born in 2006 and 2000 respectively and have dual Irish/British nationality. The applicants live in Derry, Northern Ireland. They are represented before the Court by A. Morven, an Immigration Adviser practising in Belfast.
A.  The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.

1.  The relationship between the applicants

The first applicant is the fiancée of the second applicant and the mother of the third and fourth applicants. She is a practising Roman Catholic. The second applicant is a Nigerian citizen of Biafran ethnic origin. He has applied for asylum and has been granted temporary admission to the United Kingdom. However, his asylum claim has not yet been processed by the Home Office. He is the father of the third applicant. He is also a practising Roman Catholic. The second applicant arrived in Northern Ireland in 2004 and met the first applicant in November 2004. The first and second applicants have been living together since December 2005 in Derry, Northern Ireland. The third and fourth applicants live with them. The third applicant is the first and second applicants’ biological child and the fourth applicant is the first applicant’s child from a previous relationship. Both the third and fourth applicants have been baptised into the Catholic faith.
The first and second applicants care for their children and also for the first applicant’s disabled parents. The first applicant receives Invalid Carer’s Allowance, Income Support, Child Benefit and Housing Benefit. The second applicant is not entitled to work.

2.  The first and second applicants’ intention to marry

In May 2006 the second applicant proposed to the first applicant who accepted. They plan to marry in their local Catholic Parish Church in Derry. There is no Church of England in Northern Ireland.
On 9 July 2007 the first and second applicants applied for a Certificate of Approval (“Certificate”, permission from the Home Office to marry) and requested to be exempted from the GBP 295 fee. They explained in detail that the first applicant survived on Invalid Carer’s Allowance and Income Support and that the second applicant was destitute as a result of not being permitted to work. This explanation was attached to the application and a supporting letter from their Member of Parliament (MP) was sent.
On 18 July 2007 their application was returned to them with a letter stating the following: “If an applicant does not pay the specified fee, his or her application is invalid. The specified fee has not been paid in connection with your attempted application which you made by post on 9 July 2007. We do not consider that an exception to the requirement to pay the fee applies in this case, therefore your application is invalid and we are returning your documents.”
In July 2008 a group of the applicants’ friends contributed towards the fee required to make an application for a Certificate. The applicants subsequently made an application with the donated funds and have been issued with a Certificate.

3.  The High Court’s Opinion on the Certificate of Approval Scheme

On 10 April 2006 Mr Justice Silber delivered judgment in the case of R (on the applications of Baiai and Others) [2006] EWHC 823 QB (Admin).
Mr Justice Silber considered whether the scheme under section 19 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 (“2004 Act”) interfered with the Articles 12 and 14 rights of those who were subject to immigration control and who were in the United Kingdom lawfully.
He found that it was permissible, according to the ECHR jurisprudence, to introduce legislation to prevent marriages entered into for the purpose of avoiding immigration control even though this legislation might interfere with the right to marry. Furthermore, the legislative object relied on by the Government of preventing sham marriages was sufficiently important to justify limiting an Article 12 right.
However, in the case of the scheme under section 19 of the 2004 Act, the measures designed to meet the legislative objective were disproportionate as they were not rationally connected to it for, inter alia, the following reasons: First, all religious marriages other than those in the Church of England required a Certificate despite the fact that evidence showed that sham marriages predominantly took place in registry offices. The treatment of religious marriages outside of the Church of England was a matter of concern as they were treated like registry office marriages even though evidence indicated that the same precautions which prevented sham marriages taking place in the Church of England were also present in other religious ceremonies. Second, there was no basis for the assumption that all religious marriages outside the Church of England were automatically to be treated as sham marriages, thus requiring a Certificate, while in contrast all marriages conducted according to the rites of the Church of England were to be regarded automatically as not being sham marriages and therefore did not require a Certificate. Third, the scheme under section 19 of the 2004 Act arbitrarily failed to take into account many factors which might be relevant in considering whether a proposed marriage was a sham, such as clear and corroborated evidence that the parties had enjoyed a loving relationship over a number of years, during which time they might have had children or bought a house together. It was difficult to understand how the scheme, which ignored factors such as these, could be “rationally connected” to the purported legislative aim of avoiding sham marriages. Fourth, the scheme was not rationally connected to the legislative objective as it regarded the only and crucial relevant factors in determining whether a non-EU national could marry in the United Kingdom as his or her immigration status.
The scheme under section 19 of the 2004 Act was not proportionate and constituted a substantial interference with Article 12 rights.
The scheme was also incompatible with Article 14 of the ECHR as it was discriminatory on the grounds of religion and nationality. It constituted direct discrimination as it targeted individuals who were, because of their religious convictions or lack of them, unable or unwilling to marry pursuant to the rites of the Church of England. Meanwhile those who wished to marry in the Church of England were exempted from the scheme.
Furthermore the fact that a fee was levied was also discriminatory as this was not required of those with the same characteristics wishing to marry in Church of England religious ceremonies.
The Secretary of State accepted Mr Justice Silber’s findings that the scheme under section 19 of the 2004 Act was discriminatory and did not seek to challenge this conclusion on appeal.

4.  The Court of Appeal’s Opinion on the Certificate of Approval Scheme

On 23 May 2007 the Court of Appeal delivered judgment in the case of SSHD v. Baiai and Others [2007] EWCA Civ 478. It agreed with Mr Justice Silber’s finding that the scheme under section 19 of the 2004 Act was disproportionate and violated Articles 12 and 14 of the ECHR. However, it disagreed with the conclusion reached in a further judgment relating to Mr Baiai ([2006] EWHC 1454 (Admin), in which Mr Justice Silber had upheld the refusal of a Certificate to him on the ground that he was an illegal entrant. The Court of Appeal held that the immigration status of Mr Baiai was irrelevant to the genuineness of his proposed marriage, which alone could properly determine whether he should be free to exercise his right to marry.

5.  The House of Lords’ Opinion on the Certificate of Approval Scheme

On 30 July 2008 the House of Lords delivered an opinion on the Certificate of Approval scheme in the case of R. (on the application of Baiai and others) v. Secretary of State for the Home Department [2008] UKHL 53. The House of Lords considered whether the scheme established by the Secretary of State under section 19 of the 2004 Act involved a disproportionate interference with the right to marry under Article 12 of the Convention.
Lord Bingham first conducted an overview of the ECHR jurisprudence on Article 12. He observed that from the early days the right to marry had been described as “fundamental.” It had been made clear that the scope afforded to national law was not unlimited and it had been emphasised that national laws governing the exercise of the right to marry must never injure or impair the substance of the right. National laws must not deprive a person or category of person of full legal capacity of the right to marry or substantially interfere with the exercise of that right. In practice the ECHR had been firm in upholding the right to marry, finding in favour of applicants denied the exercise of that right because they were serving prisoners (, no. /, Commission decision of 13 December 1979, Decisions and Reports 24, p. 62), because of a mandatory delay imposed before entering into a fourth marriage (F. v. Switzerland, 18 December 1987, Series A no. 128), or because one applicant was the father-in-law of the other and they could only exercise their right to marry if they obtained a private Act of Parliament (B. and L. v. the United Kingdom, no. 36536/02, 13 September 2005).
Article 12 in contrast with Article 8 conferred a right, not a right to respect for specified areas of personal life. Furthermore, Article 12 contained no equivalent to Article 8 § 2 and the “Strasbourg authorities had not in practice upheld the right to found a family with the same firmness they had shown in upholding the right to marry.” The decision in Sanders v. (no. /96, Commission decision of 16 October 1996, Decisions and Reports 87) interpreted as clear authority for the proposition that national law may properly authorise a national authority to delay a proposed marriage between a citizen and a third-country national for a reasonable period to establish whether the marriage was one of convenience. However, there was no authority in support of the Government’s proposition that a significant restriction could be placed on all such marriages, or on a sub-class of such marriages, irrespective of whether they were marriages of convenience or genuine marriages and with no procedure to ascertain whether they were one or the other.
Lord Bingham considered that apart from its discriminatory features, which the Secretary of State had undertaken to remove, section 19 of the 2004 Act was not, when read alone, legally objectionable. It was open to a State party to the ECHR to seek to prevent marriages of convenience in a manner that was consistent with Article 12. There was nothing in the text of section 19 which authorised or required the withholding of permission to marry in the case of any marriage which was not a marriage of convenience. Section 19 could be operated, consistently with its terms and the protection afforded by Article 12, in a manner which required persons subject to immigration control to give notice of a proposed marriage, enabled an appropriate authority to investigate whether the proposed marriage would be one of convenience and provided for the withholding of permission only in cases where it appeared that the proposed marriage would be one of convenience. The Immigration (Procedure for Marriage) Regulations 2005 (SI 2005/15) (“the 2005 Regulations”) were also unobjectionable, subject to one qualification. It was clear that a fee fixed at a level which a needy applicant might not be able to afford might impair the essence of the right to marry. A fee of GBP 295 (GBP 590 for a couple where both individuals were subject to immigration control) could be expected to have that effect.
However, the manner in which the scheme was operated in practice (evidenced by the Immigration Directorates’ Instructions) imposed a blanket prohibition on the exercise of the right to marry by all individuals in specified categories, irrespective of whether their proposed marriages were marriages of convenience or not. This was a disproportionate interference with the exercise of the right to marry.
Baroness Hale of Richmond expressed the view that the scheme under section 19 of the 2004 Act enabled the Government to prohibit in advance a great many marriages irrespective of whether or not they were genuine, irrespective of whether or not there was any immigration advantage to be obtained thereby and without any right of appeal other than judicial review. This struck at the heart of the right to marry under Article 12 of the ECHR.
Apart from being discriminatory, the regime under section 19 of the 2004 Act was objectionable as it covered anyone who was subject to immigration control including all non-nationals unless they had already acquired the “right of abode” in the United Kingdom. Furthermore, there was no power in the regulations to waive or reduce the fee payable for a Certificate regardless of how meritorious the case was. The fee would act as a positive disincentive even for couples who genuinely wished to get married and for whom marriage would have no impact on immigration status.
B.  Relevant domestic law and practice
Section 19 (1) of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 (“2004 Act”) imposes certain requirements before a person subject to immigration control is able to marry, otherwise than in accordance with the rites of the Church of England under Part II of the Marriage Act 1949.
Section 19 (3) of the 2004 Act stipulates, as relevant, that:
“(3) The superintendent registrar shall not enter in the marriage notice book notice of a marriage to which this section applies unless satisfied, by the provision of specified evidence, that the party subject to immigration control—
(a) has an entry clearance granted expressly for the purpose of enabling him to marry in the United Kingdom,
(b) has the written permission of the Secretary of State to marry in the United Kingdom....”
Section 19 (4) (a) of the 2004 Act provides that a person “subject to immigration control” is a person who is not a European Economic Area (EEA) national and who requires leave to enter or remain in the United Kingdom.
Section 23 of the 2004 Act provides the following in relation to Northern Ireland:
“(1) This section applies to a marriage—
(a) which is intended to be solemnised in Northern Ireland, and
(b) a party to which is subject to immigration control.
(2) In relation to a marriage to which this section applies, the marriage notices—
(a) shall be given only to a prescribed registrar, and
(b) shall, in prescribed cases, be given by both parties together in person at a prescribed register office.
(3) The prescribed registrar shall not act under Article 4 or 7 of the Marriage (Northern Ireland) Order 2003 (S.I. 2003/413 (N.I.3)) (marriage notice book, list of intended marriages and marriage schedule) unless he is satisfied, by the provision of specified evidence, that the party subject to immigration control—
(a) has an entry clearance granted expressly for the purpose of enabling him to marry in the United Kingdom,
(b) has the written permission of the Secretary of State to marry in the United Kingdom, or ...”

The Certificates of Approval Scheme

Permission from the Secretary of State is granted by the issuing of a Certificate of Approval (“Certificate”) pursuant to the procedure provided for in the Immigration (Procedure for Marriage) Regulations 2005 (SI 2005/15) (“the 2005 Regulations”).
The scheme also applies to individuals who have already been recognised as refugees under the Geneva Convention or who are long term legal residents in the United Kingdom such as students or work permit holders. The Registrar of Births, Marriages and Deaths must have this Certificate before the marriage licence can be issued. Catholic priests and the ministers of other religions are “authorised persons” under national law and can solemnise legally binding marriages without the need for a separate civil ceremony. However, in order for the marriage to be lawful, the couple must produce to the “authorised person” the marriage licence issued by the Registrar.

Application Fees for the Certificate of Approval.

The fee for each individual applying for the Certificate was increased on 2 April 2007 to GBP 295. There is no statutory right of appeal for an applicant who alleges that they cannot afford to pay the fee. If the fee is not paid, the application for a Certificate is invalid and there is no discretion for the fee to be waived. The refusal of an application for a Certificate does not constitute an immigration decision and there is no statutory right of appeal against it.
Those who have paid for and obtained a Certificate prior to marriage must pay further fees in the sum of GBP 750 if they wish to apply for a change of immigration status based on that marriage. Such a change of status may be refused even if a Certificate has been granted. Not even partial refunds of the fees are given if the applications for Certificates are unsuccessful.

Policy Regarding Certificates of Approval

In February 2005 the Immigration Directorates issued instructions on authority to marry, entitled “Criteria for Granting a Certificate of Approval”. Chapter 1, section 15 provides that in order to qualify for a Certificate:
“(i) The applicant must have valid leave to enter or remain in the United Kingdom beyond a short term status, which means for more than 6 months, with more than 3 months remaining at the time of the application for the Certificate.”
(ii) There must be no good reason to believe that there is a legal impediment to the marriage, such as age or consanguinity;
(iii) If the applicant does not meet requirements (i) above, the application may still be granted if:
(a) an initial decision on an application for immigration status or appeal has been outstanding for 18 months; or
(b) there are compelling compassionate circumstances which make it unreasonable to expect the couple to travel and marry abroad or for the person subject to immigration control to travel abroad and apply for entry clearance for marriage in the United Kingdom.”

The Marriage Act 1949

This remains the primary statute governing the solemnisation of marriages in England and Wales. It draws a sharp distinction between marriages solemnised according to the rites of the Church of England following the reading of banns or the grant of an Archbishop’s licence or a common licence (“ecclesiastical preliminaries”), the subject of Part II of the Act, and marriages solemnised on the authority of a certificate of a superintendent registrar, the subject of Part III. The broad effect of the Act is that any marriage not solemnised according to the rites of the Church of England following ecclesiastical preliminaries must be, in effect, licensed by the certificate of a superintendent registrar even if, before or after, a religious ceremony has taken place.
Sections 57 and 58 of the Matrimonial Causes Act 1857 obliges the Church of England to marry for the first time anyone who lives in the parish regardless of their faith or lack of it.

Declaration of Incompatibility

Section 4 of the Human Rights Act 1998 provides that:

“(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.
(2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.
(3) Subsection (4) applies in any proceedings in which a court determines whether a provision of subordinate legislation, made in the exercise of a power conferred by primary legislation, is compatible with a Convention right.
(4) If the court is satisfied—
(a) that the provision is incompatible with a Convention right, and
(b) that (disregarding any possibility of revocation) the primary legislation concerned prevents removal of the incompatibility,
it may make a declaration of that incompatibility...
(6) A declaration under this section (“a declaration of incompatibility”)—
(a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and
(b) is not binding on the parties to the proceedings in which it is made.”
Section 10 provides:
“(1)This section applies if -
(a) a provision of legislation has been declared under section 4 to be incompatible with a Convention right (...)
(2) If a Minister of the Crown considers that there are compelling reasons for proceeding under this section, he may by order make such amendments to the legislation as he considers necessary to remove the incompatibility.”
COMPLAINTS
The applicants complain that the Certificate of Approval scheme violated their rights under Articles 8, 9, 12, 14 and 13 of the Convention.
Under Article 12 they complain that the Certificate of Approval scheme constituted a disproportionate interference with their right to marry and found a family. They assert that the level of fees charged impaired the very essence of the right.
Under Article 8 they complain that the existence of the scheme and its application to them constituted an unjustified interference with their right to respect for their family life. In particular, they allege that their right to moral and physical integrity, their right to a reputation and their right to develop relationships was violated, inter alia, by their being unable to live together in wedlock and to legitimise the status of their child, the third applicant.
Under Article 9 they complain that their right to manifest their religious beliefs was violated by their being prevented from solemnising their marriage in the Catholic Church as their religion required.
They complain under Article 14, in conjunction with Articles 8, 9 and 12 of the Convention that the Certificate of Approval scheme was discriminatory on the ground of their religion as it would not apply to them if they were able or willing to marry in the Church of England according to Anglican rites. They further contend that they were discriminated against on account of the second applicant’s nationality and their inability to pay the fees.
Finally they complain under Article 13 of the Convention that they had no effective remedy available to them as the violations were the direct consequence of primary legislation and consequently the only available remedy was a Declaration of Incompatibility under the Human Rights Act 1998 which this Court had already found not to constitute an effective remedy.
QUESTIONS

1.   Were the first and second applicants’ rights under Article 12, taken alone or in conjunction with Article 14 of the Convention, breached by the Certificate of Approval scheme provided by section 19 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004?

2. Were the first and second applicants’ rights under Article 9 taken in conjunction with Article 14 of the Convention breached by the Certificate of Approval scheme? 

3. Do the facts in the present application disclose the existence of a structural problem on account of deficiencies in the impugned national law, which may give rise to numerous similar applications? If so, is the present case suitable for “pilot judgment” procedure? (see, for example, Broniowski v. Poland [GC], no. 31443/96, §§ 189 et seq., ECHR 2004-V, and Hutten-Czapska v. Poland [GC], no. 35014/07, ECHR 2006-…§§ 231 et seq.). What proposals, if any, have the Government put forward in order to address the findings contained in the House of Lords’ opinion on the Certificate of Approval Scheme?