Crackdown on sham marriages is unfair to migrants, says judge

Crackdown on sham marriages is unfair to migrants, says judge

· Couples in CofE weddings exempt from rules
· High court rules scheme was discriminatory

Alan Travis, home affairs editor, The Guardian, April 11, 2006

Home Office ministers last night suspended their drive against « sham » marriages involving migrants after a high court judge ruled it was discriminatory because those who married in Church of England ceremonies were exempt from the clampdown.

Mr Justice Silber said he was troubled by the fact that migrants who married in non-Anglican religious ceremonies needed a certificate of approval from the home secretary.

He said the Home Office rules breached the right to marry and start a family under the European convention on human rights. The ruling will affect hundreds of migrants who want to marry in Britain.

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The case was brought by the Joint Council for the Welfare of Immigrants (JCWI) on behalf of three couples, including Mahmoud Baiai, a Muslim from Algeria, and Izabela Trzcinska, a Roman Catholic from Poland, who were banned from marrying because Mahmoud was an illegal migrant.

The clampdown was introduced in February last year after claims that marriages of convenience were being used to avoid immigration controls. The new rules meant that those who come from non-European countries must apply to the home secretary for permission to marry if they are in Britain on an immigration visa or are failed asylum seekers. Those with less than three months to run on their visa have normally been refused permission.

The Home Office said last night it was suspending the need for a certificate from the home secretary pending an appeal, but claimed that the number of reports of suspicious marriages from registrars had fallen from 3,740 in 2004 to fewer than 300 since the clampdown was introduced.

But Mr Justice Silber said in a summary of his judgment that while there was evidence that sham marriages took place in registry offices, there was no evidence or claim that they had taken place in non-Anglican religious ceremonies. He said many of the factors the home secretary used to justify the exemption of Church of England marriages applied not only to other Christian churches but all religious marriage ceremonies, whether they were in mosques, Hindu temples or synagogues.

These factors included the need to book the wedding months ahead and the close questioning of the couple’s intentions. « In other words, it is not clear why those using an Anglican church ceremony would be less likely to engage in a sham marriage than those who use, say, Presbyterian, Catholic, Jewish, Hindu or Muslim religious ceremonies, » said the judge.

Habib Rahman, the JCWI chief executive, said its legal advisers had witnessed the heartbreak of many genuine couples, including UK citizens from ethnic minorities, who had been prevented from marrying. « This ruling vindicates their wish to marry their partner of choice in the UK. We urge the Home Office to take note of this ruling and not to delay in repealing this cruel and discriminatory regime. »

The couple in the successful test case took action after the Home Office refused them permission to marry in February 2005. Mr Baiai, 34, had arrived in Britain illegally in 2002 and had not regularised his immigration status. Ms Trzcinska, came to London after Poland joined the EU in July 2004. They met while she was working in a pub.