Human Rights – marriage and family life

O’ Donoghue v The United Kingdom [2010] ECtHR Case on Right to Marry

Written ministerial statement on English language requirement | Home Office.


Quila v Home Secretary [2010] EWCA Civ 1482


Damian Green’s Letter

I have been reading on another WordPress blog about the problems faced by anyone from abroad who is marrying a UK citizen getting the visa required to enable them to settle together in this country.

I have checked back and see that several respondents to the consultation paper warned the Minister Liam Byrne that this change would probably infringe Articles 8 and 12 of the European Convention on Human Rights.

Theresa May as Home Secretary then introduced the new immigration rules shortly after coming to office – see the link above to the Ministerial Statement.  The Labour Party and the Conservatives are jointly responsible for this breach of human rights.

The Courts have said they could not annul the Immigration Rules, but in the Quila case (link above) the Courts have already declared that the rule about the sponsorship of people under 21 in the Immigration Rules, which was based on the 2008 Consultation Paper,  should not be followed as it is an arbitrary rule, contrary to Article 8.

I thought the same would happen with the rule about English language testing.  The High Court has now decided otherwise, in the case of R (Chapti) v Home Secretary [2011] EWHC 3370 (Admin), on the narrow ground that the language testing rule does not prevent a couple being reunited and marrying abroad, so Article 12 is not engaged.  The judge said Article 8 was engaged, but that the rule was not in itself a disproportionate interference with family life. He recognised, however that “it may, in an individual case, be possible to argue that the operation of the exceptions in the way envisaged in the evidence adduced on behalf of the Home Secretary is a disproportionate infringement of that individual’s Article 8 rights”.

The question is, should not the UK respect the right of its citizens to to marry, by allowing them to do so here, rather than relying on the another state to allow the British citizen to enter it to marry?  How would we feel if we were not allowed to enter Pakistan to marry, without having learnt Urdu first?

It remains to be seen whether this decision will be reversed on appeal or by the ECtHR.

The European Court of Human Rights has already ruled on the approved certificate scheme in the O’Donoghue Case, which infringes the Convention and the Government is now bringing in a remedial order to abolish the scheme. This was partly because  Church of England marriages were exempted from marriage restrictions, which was considered discriminatory.

There is the problem of forced marriage and sham marriage, but it is wrong that those who have genuine marriages or other relationships should be adversely affected by a rigid and unreasonable law which inteferes with their personal freedom in a very serious way.

It is clear from David Cameron’s latest speech that he is unwilling to pay heed to the Liberal Democrats in Government who want to rectify this.  Even decisions of the European Court of Human Rights are ignored.

It still seems to me that the English language requirement is discriminatory, disproportionate and unnecessary. A spouse who is allowed to live with his or her partner in this country is far more likely to be able to learn English than one who is kept out. This has been presented as a way of helping immigrants to integrate when they are allowed to come here, but the delay in coming here caused by the  need to learn English first does not reduce the time required for integration at all – it only lengthens it.  This applies to families and couples of all kinds, not just married couples.

I see that the Joint Council for the Welfare of Immigrants and the Immigration Law Practitioners Association wrote to Damian Green the Immigration Minister about this (see link above).

I have been provided with a copy of Damian Green’s reply (see link above).   I think this shows how much we need to be concerned about the Tories’ attitude to human rights.


About michaeljameshall

I live in Orpington and am a retired solicitor. I am also a Liberal Democrat campaigner, interested in democracy, human rights, legal affairs and law reform. I am a member of the Liberal Democrat Lawyers' Association.
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2 Responses to Human Rights – marriage and family life

  1. Tim Baber says:

    I have a fiancee and we are in our 2’nd year, my visiting there a year ago.
    The respectable website where this Cinderella Red Cross worker etc found me
    would be illegal if it were not hosted in Australia, such are the dictates of Government.
    I wanted to go there to collect her on a motorcycle, like “the” and had a new steed so to do, but borders and boundaries and paperwork fouled the spirit of the example I wanted to emulate. And now delay at best for my Filipino, with this test yet they all can speak English there, yet the rule, the test, the bar persists. My assurances here she can really feel the benefits of a liberal enlightened country is being predicated by apologies for these barriers and neighbours who fail any test
    I would like to see them take that might allow them to welcome a national any
    documentary shows could wipe the floor better than they. Sigh. This could be a lovely test case. If only the world were square.

  2. Hey are using WordPress for your site platform? I’m new to the blog world but I’m trying to get started and set up
    my own. Do you require any coding knowledge to make your own
    blog? Any help would be really appreciated!

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