By JR on Friday, October 14, 2011
British courts are using Human Rights legislation to knock down laws rightly made by Parliament, a Supreme Court judge said yesterday.
Lord Brown launched a furious attack on other judges for making ‘highly contentious’ rulings and ‘frustrating’ Government policy decisions.
His comments came as his court, against his wishes, overturned a ban on marriage visas for foreign nationals wanting to marry a Briton when either is under 21.
The rule was designed to protect against forced marriages involving vulnerable young women.
But by a four to one majority, the Supreme Court judges said it was a breach of Article 8 of the European Convention on Human Rights – the right to a ‘private and family life’.
This has been used by terrorists and hardened criminals to escape deportation simply because they have family or social ties in Britain.
Lord Brown, the only judge to dissent, said in his judgment that the decision should be ‘one for elected politicians, not for judges’. He wrote: ‘Article 8 is a difficult provision which has already led to some highly contentious, not to say debatable, decisions. Upon that I am sure we would all agree.
‘In a sensitive context such as that of forced marriages, it would seem to me not merely impermissible but positively unwise for the courts yet again to frustrate Government policy except in the clearest of cases. To my mind this cannot possibly be regarded as such a case. ‘Unless demonstrably wrong, this judgment should be rather for Government than for the courts.’
The court heard forced marriages were most commonly found in Pakistani and Bangladeshi communities and were used as a way of getting around immigration rules.
The rule, introduced in 2008, was challenged by two genuine couples who were barred from marrying in Britain. Diego Aguilar, a Chilean student, married Briton Amber Jeffrey before the rule came into force in November 2008, when she was 17 and he was 18. But ministers refused him the right to stay in the country because of their ages.
Briton Suhyal Mohammed was prevented from bringing his young Pakistani wife, Shakira Bibi, into the country because both were under 21.
The High Court ruled in favour of the Government, but its ruling was overturned in the Court of Appeal. And yesterday the Supreme Court upheld the Appeal Court’s ruling.
One of the judges, Lord Wilson, said it was a ‘colossal interference’ with Article 8 rights to force couples to live separately, or force a British citizen to leave the country. Lady Hale, Lord Phillips and Lord Clarke also upheld the judgment.
Lord Wilson said the Home Office had failed to prove the restriction was justified, despite accepting it had ‘a legitimate aim in deterring the practice of forced marriages and is rationally connected to that aim’.
But Lord Brown said the other judges had taken Article 8 even further than the European Court of Human Rights in Strasbourg. Similar age restrictions exist in Germany, Austria, Belgium and other European countries, he said. In Denmark both bride and groom must be 24 before they can wed if one is from overseas.
Dominic Raab, a Tory MP and human rights expert, said: ‘This is a patent example of the courts legislating to expand the right to family life. It goes beyond the European Convention, it goes beyond precedent in the UK or the Strasbourg Court and it is stricter than several other European democracies.
‘Yet again, unaccountable judges are substituting their view on what amounts to an effective immigration policy for that of elected law-makers, and on a wafer-thin basis.’
Immigration minister Damian Green warned that today’s ruling threatened to ‘put vulnerable people at risk’. He said: ‘This is another very disappointing judgment, which overturns a policy that exists and is judged to be consistent with the European Convention on Human Rights in other European countries.
‘The judges themselves agreed increasing the marriage visa age had a legitimate aim.’