Sunday, November 13, 2011

UK Border Agency issues new policy guidance on age 21 marriage visas following Quila and Bibi judgement

Following the recent Supreme Court judgment in the case of Quila and Bibi v Secretary of State for the Home Department [2011] UKSC 45, the UK Border Agency has today announced new policy guidance for marriage visas, reinstating the minimum age to 18.

The Quila and Bibi case successfully challenged the requirement under paragraph 277 of the Immigration Rules for both foreign spouses and their sponsors in the UK to meet a minimum age of 21 before the foreign spouse could be granted a visa to enter or remain as a spouse or partner.

Paragraph 277 (along with other paragraphs of the Immigration Rules) was amended on 27 November 2008 to raise the minimum age from 18 to 21.

The UK Border Agency said:

‘The Supreme Court has ruled that, whilst they recognised that the Secretary of State was pursuing a legitimate and rational aim of seeking to address forced marriage, the change to the rule (increasing the minimum marriage visa age from 18 to 21) disproportionately interfered with the Article 8 rights of those who were in genuine marriages.’

The guidance affects applicants whose ‘applications for entry clearance or leave as a fiancĂ©(e), proposed civil partner, spouse, civil partner, unmarried partner or same-sex partner were refused under paragraphs 277, 289AA, or 295AA of the Immigration Rules solely because they or their sponsor were aged between 18 and 20 and whose application was refused on that basis between 27 November 2008 and October 2011’.

This includes applications made inside or outside the UK. The guidance sets out how refused applicants can apply for a review of the original decision to refuse a visa which the agency say ‘might now result in a visa being issued’.

Changes to the Immigration Rules have been laid in Parliament today to reinstate a minimum age of 18 for a spouse, civil partner, fiancé(e), proposed civil partner, unmarried partner or same-sex partner and for their sponsor in order to qualify for entry clearance, leave to enter, leave to remain or a variation of leave on that basis. These rules will come into effect on 28 November 2011.

The new policy guidance explains how applicants affected by the judgment can request a review of an earlier refusal due to the age requirement by 31 May 2012.

Further information on how to request a review can be found under the partners and families section of the UKBA website, Husband, wife or civil partner, Unmarried or same-sex partner, and Fiance(e) or proposed civil partner categories. Source: UB Border Agency.

Speaking on the judgement last month the Immigration Minister Damian Green said:

“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.

“The judges themselves agreed increasing the marriage visa age had a legitimate aim.

“We believe this decision will put vulnerable people at risk of being forced into marriage. We will come forward with our response in due course.”

The Joint Council for the Welfare of Immigrants (JCWI), which represented Amber and Diego Aguilar in their case, estimates the ruling could allow up to 5,000 foreign spouses to settle in the UK every year.

Habib Rahman of the JCWI said:

“This was a law introduced on the hoof, which had no discernible effect on forced marriage, but infringed on the rights of UK citizens to live in the UK with their partners.

“We are delighted to see it consigned to the scrap heap of misguided legislation.”

See also:

UK Border Agency ‘dumped’ missing asylum seeker cases

UK border force head suspended

Court overturns UK Government’s non-EU under 21 spouses ban

JCWI and ILPA update on Zambrano case

EctHR Judgment Bah v UK

UK Border Agency announce further changes to the student visa system

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