image of 4 Paper Buildings logoGarden CourtHarcourt ChambersFamily Law Week Email Subscription1 Garden CourtDNA LegalCoram Chamberssite by Zehuti

Human Rights Update – December 2011

Deirdre Fottrell, Barrister, of Coram Chambers considers two recent judgments relating to human rights and family law.

Deirdre Fottrell, Barrister, Coram Chambers

Deirdre Fottrell, Barrister, Coram Chambers

This update will consider two important areas in which there have been significant development in the last few months:

Settlement of foreign spouses in the UK under Article 8
R (Quila and Another) v Secretary of State for the Home Department
[2011] UKSC 45 
The Supreme Court considered the lawfulness of the Home Secretary's policy which prohibited foreign spouses or civil partners from entering the jurisdiction to settle unless both parties to the marriage or civil partnership were over the age of 21 years.

The policy had been introduced by way of a change to the Immigration Rules from 27th November 2008.  The Home Secretary explained that the policy change was required to prevent forced marriages.

The claimant husband was a Chilean National who married a British Citizen.  She was only 17 years old at the time of the marriage.  By the time she turned 18 years the new policy had taken effect.  The result was that the claimant and his wife had to leave the UK for a period of time as he could not lawfully remain living in the jurisdiction.  They moved to the Republic of Ireland.  An application for judicial review of the policy in the High Court was unsuccessful.  On appeal however the claimant did succeed as the Court of Appeal found that the policy breached the claimant's right to family life under Article 8 of the ECHR.  The Home Secretary appealed to the Supreme Court.

In the Supreme Court Lord Wilson considered whether the effect of the policy which had led to the claimants having to leave the UK to live in Ireland for a period of years interfered with their right to private and family life under Article 8 (1).  The question of whether Article 8(1) was engaged depended on whether the Court was satisfied that the claimants had an established family life.  It considered jurisprudence of the ECtHR, and in particular the case of Abdualaziz and Others v UK [1982] in which it had found that a married couple were not entitled under Article 8(1) to establish a family life in a state of their choosing and as such Article 8(1) was not always engaged in circumstances where a married persons were seeking to reside in a member state.  The assessment of whether family life was engaged depended on the factual circumstances.  Further the ECtHR in Abdualziz concluded that decisions which involved immigration laws attracted a wide margin of appreciation in such matters. 

However Lord Wilson declined to follow this line of case law from the Court and in particular he concluded that Article 8(1) was engaged in the circumstances of this case and the question was whether the interference could be justified by reference to Article 8(2).

In considering the issues under Article 8(2) the Court noted that the legitimate aim behind the policy was to prevent forced marriage and thereby to protect the rights and interests of others.  While the Court accepted that this aim may have been behind the policy it noted that in devising the policy insufficient regard had been had to the effect it could have on consensual marriage.  The impact of the policy on this couple had been to require them to leave the UK when the wife was entitled to live here.  Lord Wilson noted that such an interference became hard to justify, for example, when the evidence from the intervenors in the case, Southall Black Sisters, was that the policy did not appear to have the effect of preventing forced marriages.  Further the Court was told that it also had a discriminatory impact on minority communities. 

As such the Court concluded that the refusal of immigrant marriage visas to the claimant did constitute a breach of Article 8 which was not justified under Article 8 (2).

Citizenship and children born out of wedlock
Genovese v Malta
(53124/09), decision of the European Court of Human Rights, 11th October 2011.
The applicant was born in Scotland in 1996.  His father was Maltese and his mother was British.  The parents were not married.  The mother applied for the child to be granted Maltese citizenship but this was initially denied on the basis that the mother could not produce a birth certificate which evidenced that the child's father was a Maltese citizen.

The mother obtained a declaration in the Scottish courts that the child's father was Mr G, a Maltese citizen.  The mother produced scientific evidence to support her claim.  It was not disputed by the father.

When the mother again applied for Maltese citizenship it was denied on the basis that the child was not eligible under the Maltese Citizenship Act which stipulated that a child born out of wedlock was only eligible if the mother was a Maltese Citizen.    The mother pursued a constitutional claim in the Maltese courts.  At first instance the civil court found that the Maltese Citizenship Act was discriminatory in its effect on the right to family life owing to its differentiation between children born to married and non-married parents.  However the decision was reversed by the Constitutional court which considered that citizenship did not engage family life and in any event in this case family life was not affected because in reality the child's father refused to have any contact with him.

The ECtHR considered established case law whereby the concept of 'family life' applies to marital and non-marital children.  Furthermore it accepted that the notion of citizenship also engaged the concept of private life under Article 8.  The Court noted that Article 8 does not entitle a person to the citizenship of their choice and that in general there was no right to acquire a particular nationality or citizenship.  However it has previously concluded that an arbitrary denial of citizenship can in itself give rise to issues under Article 8 when taken together with Article 14 which prohibits discrimination.  Article 14 has no independent existence under the Convention but it does not presuppose the violation of a substantive right in that it only requires that the facts of the case fall within the 'ambit' of one of the protected rights under the Convention.  In this case it was satisfied that a decision to deny citizenship limited the amount of time the applicant could spend in Malta and that in turn impacted on his ability to foster a relationship with his family and his father in particular.  While the Court was not persuaded that his family life was engaged, it did accept that the concept of private life is wide enough to embrace aspects of a person's social identity.  The Court therefore accepted that while the denial of citizenship did not in itself breach Article 8 the impact on the applicant's social identity was sufficient as to bring it within the general scope and ambit of that Article.

Having so decided, the Court proceeded to consider whether as such the policy was discriminatory within the meaning of Article 14.  The Court noted that the Convention had to be interpreted in light of present day conditions.  It concluded that the question of equality between children born out of wedlock and those born to married parents was one which had long been considered important by member states.  The Court reminded itself of the landmark decision of Marckx v Belgium [1974] in which a policy which treated children differently based on the marital status of their parents was found to be in breach of Article 14.  The Court considered that a distinction between children based on marital status was one which Article 14 sought to protect children from in the absence of an objective justification.  The Court was not persuaded by the Government argument that it was justified on the basis that it reflected social realities.  The Court concluded that the policy breached Article 14.