Job Demand In Canada

Groundbreaking judgment in Supreme Court Case regarding age limits and spousal visas

R (on the application of Quila and another) (FC) (Respondents) v Secretary of State for the Home Department (Appellant) R(on the application of Bibi and another)(FC) (Respondents) v Secretary of State for the Home Department (Appellant) [2011] UKSC 45 (12 October 2011)

This appeal was brought forward by the Secretary of State to the Supreme Court against the order of the Court of Appeal dated 21 December 2010 (Sedley, Pitchford and Gross LJJ) [2010] EWCA Civ1482, [2011] 3 All ER 81) whereby it was concluded that refusal of entry clearance to the applicants (due to being under the age of 21) was unlawful and a breach of their rights under article 8 of the European Convention on Human Rights and Fundamental Freedoms 1950 ("the ECHR").

This judgment, which has been awaited by applicants, sponsors and representatives, will have a critical affect on many cases which were refused and those to be made in the future under the amended Rule 277 of the Immigration Rules (spouses/partnersin circumstances where either the applicant or the sponsor would be aged under 21).

The Supreme Court ordered for the appeal to be dismissed and upheld the first decision made in the Court of Appeal. They found that by refusing to grant marriage visas to the respondents in this case, the Secretary of State had infringed their rights under article 8 of the ECHR citing that the age restriction of 21 does not serve its purpose (which is to prevent forced marriages it has been stated) as even though an applicant is unable to obtain entry clearance to the UK for being under the age of 21, the sponsor could essentially be forced to move abroad to the applicant's home country to continue with the family life overseas. It was quoted that:

Para. 76 "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."

As the above appeal has now been dismissed, the Secretary of State's response to the judgment is awaited. This could mean changes to the Immigration Rules or operation in order to comply with the judgment.

Applicants who had applied previously and were refused, solely on the age limit condition, may write and request that their decision is reconsidered. Those contemplating submitting an application in the near future are advised to seek legal advice where necessary.

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