Supreme Court dashes marriage rule
October 20, 2011 — News
Written by Frances Webber
The Supreme Court has condemned the raising of the minimum age of entry for spouses and partners to 21 as a ‘sledgehammer’.
The Home Office protested that the sole purpose of the November 2008 changes – which raised the minimum age of entry to join spouses and partners settled in the UK from 18 to 21 – was to help prevent forced marriages. The fact that thousands of spouses and partners in consensual marriages were forced to stay apart or stay abroad by the changes was a price worth paying for the protection of the vulnerable young women concerned. But although the law lords took the Home Office at its word, the way the changes were brought in, set out meticulously by Lord Wilson in the lead judgment in the Supreme Court, raises questions about the motivation of the Labour government, and recent remarks by prime minister Cameron raise further questions about the coalition’s support for the rule.
The Labour government’s interest in the issue of forced marriage began in 1999, when the Home Office established a Forced Marriage Working Group, which produced a report, A choice by right, the following year. Jointly with the Foreign Office, it set up a Forced Marriage Unit in 2005 to offer help to those trapped in forced marriages. This unit deals with roughly 150 to 200 foreign victims of forced marriage a year, of whom between a quarter and a third are between 18 and 20. In 2007, parliament passed the Forced Marriage (Civil Protection) Act, which provides a mechanism of protection.
These interventions on the issue of forced marriage were viewed with deep suspicion by political commentators and in south Asian communities. The measures were seen as having more to do with an almost colonial-style policing of Asian communities than with any genuine concern for victims. Why, it was asked, was the government cutting provision for refuges, cutting legal aid provision which enabled women to use the law to protect themselves against domestic violence? Why were Home Office representatives fighting so hard in the immigration courts to deny and deport women complaining of honour violence, sexual violence, domestic violence abroad? Why, in 2003, did the government increase the probationary period for those joining husbands or partners here from one to two years, forcing many women to stay in unhappy, violent marriages? Why didn’t it make it easier for migrant women to leave violent partners by waiving the ‘no recourse to public funds’ rule for them? Ignoring all these issues to take up in such a high-profile way the far less common problem of forced marriage, which south Asian women’s groups were already working to combat in their own communities, was widely perceived as feeding into and perpetuating anti-Asian and particularly anti-Muslim racism at a time when the government was pushing the ‘community cohesion’ agenda and promotion of ‘British values’.
It was in this context that in 2006, the Home Office commissioned research on the desirability of raising the minimum age for entry of foreign spouses, having already raised the minimum age from 16 to 18. The research came down strongly against such a measure, saying it would not have the desired effect, would be detrimental and discriminatory – so the Home Office refused to publish it, saying it was methodologically flawed. Instead, it put the issue out for consultation – but there was no consensus in favour of raising the age; respondents were almost evenly split. In June 2008, the Home Affairs Select Committee investigated forced marriage as part of an inquiry into domestic violence and honour violence – and warned the government not to change the rules on entry of foreign spouses and partners until it had conclusive evidence of the impact of such a change, for parties to both forced and consensual marriages. Ignoring the Select Committee, the Home Office changed the rules anyway, and thousands of young couples found they could not live together in the UK. They included a young British-Chilean couple who fell in love but had to go to Ireland to be together, and a Pakistani couple who had had an arranged marriage. Both couples wanted to be together in Britain, and with the help of the Joint Council for the Welfare of Immigrants (JCWI), brought the test case arguing that the blanket rule against entry for under-21s denied their right to live together.
The Supreme Court, by a four to one majority, vindicated that right in its judgment of 12 October, saying that the rule was brought in hastily, without the evidence the Select Committee said was necessary, and that the Home Office had not thought about the ‘colossal interference’ with the family life of the thousands of couples affected by the change each year.
The current government could have conceded the case, but instead chose to fight it. Although Home Office lawyers argued strenuously that the only purpose of the rule was to prevent forced marriage, and it had nothing to do with immigration control, prime minister David Cameron is on record as saying that it would ‘bring down numbers' – an increasingly desperate obsession of his since he was forced to modify drastically his attempts to cut skilled worker visas in response to cries of pain by industrial leaders. Women’s organisations pointed out that the rule was unnecessary, since the protections of the Forced Marriage Act were working well, and Southall Black Sisters, a south Asian women’s group which intervened in the Supreme Court to support those affected by the rule, expressed the view that forced marriage is being used ‘in a cynical way to create a moral panic to justify the government’s immigration agenda’.
 Forced Marriage Working Group, A choice by right: The report of the working group on forced marriage, 21 May 2000. Download here.  Amrit Wilson, 'The forced marriage debate and the British state', Race & Class 49:1, 2007.  Quila and Bibi v Secretary of State for the Home Department  UKSC 45, view the judgment here.  Rahila Gupta, 'Mere posturing from the Tories on forced marriage', Guardian, 13 October 2011.
The Institute of Race Relations is precluded from expressing a corporate view: any opinions expressed are therefore those of the authors.
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