Art.12: Marry & found a family

Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.

Like Freedom of Belief the Right to Marry meets with considerable diversity across Europe and so the margin of appreciation is relatively wide. No exceptions are stipulated except that it be backed by national law. Strasbourg found few violations before the HR Act was implemented in 2000, but our own courts have since recognised ambiguities where the national law and individual situations were out of kilter
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1. Transexuals’ rights (Article 14 Non-discrimination also applies)
Mrs Bellinger was a male to female transsexual. However under the Matrimonial Causes Act 1973 the UK state could not recognise her 10 years marriage to Mr. Bellinger, and the registrar had not at the time questioned her description of herself as a spinster. Already Strasbourg had judged that the UK violated the Right to Marry of Mrs. Goodwin who was also transsexual and whom UK law prevented drawing a pension at the then women’s retirement age of 60. The House of Lords then judged Mrs Bellinger’s case to be a violation of her rights to marry and to respect for her private life and issued a Declaration of Incompatibility against the 1973 Act, as the HR Act requires when there is a mismatch between some particular law and an applicant’s human right under the European Convention.

Parliament then corrected this situation in the Gender Recognition Act (2004).
Bellinger-UKHL-2003
Goodwin-ECtHR-28957-91.

2. Balancing some couples’ right to marry against the severe needs of forced marriage victims and in spite of the wide margin of appreciation the Convention grants respecting both marriage and immigration.

In 2003 a minimum age of 18 was introduced for marriage visas for UK based sponsors and / or their incoming spouses or potential spouses. Non-British citizens with leave to remain in the UK must apply for a Home Office Certificate of Approval unless marrying in an Anglican church. In 2008 the minimum age was raised to 21 except for members of the armed forces.

Where exceptions to rights are brought into play, they must be serving a specific end and be proportionate (as light as is necessary to achieve the end). The two possible aims for this regulation were general immigration control and preventing forced marriages where most victims are younger women. Also olders might withstand pressures to marry better than youngers, but did trying to prevent forced marriages place an undue burden on genuinely loving couples?

Diego Quila was Chilean and in London in 2007 when he and British citizen Amber jeffrey fell in love. Diego went home then returned to the UK on a student visa that would expire August 2009. He was just 18 but Amber was only 17. They applied for a Certificate of Approval but were just caught by the age rise to 21 by which time Diego’s visa would have expired, so to live together they must leave the UK, she forgoing a place at Royal Holloway College. First they lived with his parents in Chile, then in the Irish Republic where as a European Economic Area citizen she had the right to live with the spouse of her choosing.

The Supreme Court judges felt the higher age criterion for Hoe Office consent would have little effect on general immigration but that  its attempt  to help victims of forced marriages was draconian so far as genuinely loving couples (it was dis-proportionate). The Home Affairs Parliamentary Select Committee urgently requested that the criterion be left at 18 unless conclusive research could show that the 21 years bar genuinely reduced forced marriages.

A majority of the Supreme Court  judges attached most weight to the fact that the proportionality calculation was only in terms of the needs of forced marriage victims and that no attempt had been made to assess what the judges called the “colossal interference” the family lives of loving couples. As a result of this ruling the minimum age for a marriage visa was returned to 18. Meanwhile the Forced Marriage Unit established under the FM Act (2007) supports and continues to try to identify victims. The situation regarding sham marriages was clarified in the Immigration Act 2015 which increases the Home Office’s time to investigate if registrars submit evidence that a particular marriage might be sham e.g. that the couple don’t speak each other’s languages.
Diego&-Amber-UKSC-2011-22
Visa-age-back-to-18
Sham-Marriages-Section 4. Declararion of Incompatibility