A recent ruling by a Supreme Court judge throws doubt onto the lawfulness of UK Government’s ban on non-EU spouses aged under 21.
Following a series of high profile cases where young married couples were forced to leave the UK or live apart due to their young age, the statement from the Supreme Court looks set to challenge one of the British immigration systems most controversial decisions.
With the issue of forced and bogus marriages sitting all-too-close to that of married couples where one or both partners is aged under 21, the UK Border Agency (UKBA) has long been cautious to protect the vulnerable, with the criticism levied that this is often at the expense of genuine couples.
The Supreme Court has stated that the ban, initially introduced in 2008, which disallows a foreign partner from outside the EU from joining their partner or spouse in the UK if they are under 21 years of age, is unjustified as it interferes with the human rights of couples.
This has not been well-received by the UK Government and the UKBA, with immigration minister Damien Green saying the statement is ‘very disappointing’, particularly in view of the fact that the policy had previously been judged lawful in other parts of the EU.
One of the main cases which has lead to the Supreme Court’s ruling is that of Briton Amber Aguilar and her Chilean husband Diego, who were both under 21 when the rule was introduced and were therefore unable to live together in the UK. Diego was banned from remaining in the UK with his wife when his student visa expired and so the couple initially lived together in Chile and then moved to Ireland.
The impact of this meant that Amber lost her university place, with the couple spending three years fighting their case. Amber said, “I basically felt like I’d been exiled from my country and in forcing him to leave they’d also forced me to leave.”
The case of British man Suhyal Mohammed and his young Pakistani wife Shakira Bibi also illustrated the situation, with Shakira banned from joining Suhyal in the UK as she was under 21. The couple met through an arranged marriage set up by their parents. There is no suggestion in either of these cases that the marriage was forced or bogus.
While the British High Court had initially backed the home secretary’s decision to not grant UK entry or settlement visas to non-EU spouses aged under 21, the Supreme Court’s latest judgement is likely to make this unenforceable. In the Supreme Court Lord Wilson said, “I would acknowledge that the changes in rules is rationally connected to the objective of deterring forced marriages. What seems clear is that the number of unforced marriages which it obstructs from their intended development for up to three years vastly exceeds the number of forced marriages which it deters.” Therefore this is no longer considered a ‘good case’ for interfering with the human right to a family life of these couples and others like them.
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