Court of Appeal

Published June 26, 2007

Regina (Baiai and Others) v Secretary of State for the Home Department Regina (Baiai and Another) v Same (No 2)

Before Lord Justice Waller, Lord Justice Buxton and Lord Justice Lloyd

Judgment May 24, 2007

The statutory scheme requiring permission by the Home Office for marriage by people subject to immigration control or those who had entered the UK illegally contravened articles 12 and 14 of the European Convention on Human Rights guaranteeing the right to marry and prohibiting discrimination for nationality or religion.

The Court of Appeal so stated when: (i) dismissing the appeal of the Secretary of State for the Home Department against a decision of Mr Justice Silber ( The Times April 14, 2006; [2007] 1 WLR 693) on claims for judicial review brought by Mr Mahmoud Baiai and Ms Izabela Trzcinska, Mr Leonard Bigoku and Ms Luljeta Agoli and Mr Melek Tilki that the policy relating to the issue of a certificate of approval to those subject to immigration control wishing to marry in the UK was disproportionate and inconsistent with articles 12 and 14; and (ii) allowing the appeal of Mr Baiai and Ms Trzcinska against a decision of Mr Justice Silber ([2007] 1 WLR 735) that, despite his conclusion that the scheme was unlawful, because Mr Baiai was unlawfully in the UK and not merely under a short-term permission, the refusal of a certificate was lawful and proportionate.

The scheme was to be found in section 19 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004.

Miss Monica Carss-Frisk QC, Mr Angus McCullough and Mr Richard Mumford for the Home Secretary; Mr Ramby de Mello, Mr Satvinder Singh Juss and Mr Adrian Berry for Baiai and Trzcinska; Mr Manjit Gill QC and Mr James Collins for Bigoku, Agoli and Tilki; Mr Richard Drabble QC and Mr Eric Fripp for the Joint Council for the Welfare of Immigrants, intervening.

LORD JUSTICE BUXTON on the first appeal said that in the light of the Convention jurisprudence the Home Secretary could only interfere with the exercise of article 12 rights in cases that involved, or very likely involved sham marriages entered into with the object of improving the immigration status of one of the parties.

To be proportionate, a scheme to achieve that end must either properly investigate individual cases, or at least show that it had come close to isolating cases that very likely fell into the target category. It must also show that the marriages targeted did indeed make substantial inroads into the enforcement of immigration control.

The scheme in issue did not pass that test.

In relation to the second appeal, there might be good grounds for saying that when a person should not be in this country at all, even on a temporary basis, it would be reasonable and proportionate to prevent him from using the access to article 12 which that physical presence gave him in order to improve his immigration position. But that was not the basis on which Mr Baiai’s application was refused.

The only right that the Home Secretary claimed in order to interfere with Mr Baiai’s intended marriage was based on the scheme.

The objection inherent in the scheme, that it inhibited marriages on the ground of immigration status rather than by a reliable consideration of the genuineness of the marriage, applied just as much in the case of an illegal entrant as in the case of persons with very limited permission to be here.

Lord Justice Lloyd and Lord Justice Waller agreed.

Solicitors: Treasury Solicitor; David Tang & Co, Westminster; Sheikh & Co, Finsbury Park; Mr Derek Beoku-Betts.

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