ECtHR rules UK immigration law discriminatory and in breach of right to marry

The European Court of Human Rights (ECtHR) has ruled that a scheme under UK immigration law breaches the right to marry under Article 12.

O'Donoghue and Others v. the United Kingdom involved the "certificate of approval" scheme, which required people who are subject to immigration control to pay a fee in order to marry. The Applicant, a Nigerian national, has "discretionary leave to remain" in Northern Ireland until November 2011. Under this immigration control, he is unable to work. He married the second applicant, a dual British and Irish national who is on social welfare payments, in 2008.


In finding a breach of the right to marry, the Court expressed grave concerns about the scheme in question. They focused on the fact that the decision to grant a certificate approval was not based solely on the genuineness of the proposed marriage. An earlier version of the scheme in fact prevented the Applicant from marrying because he did not have leave to remain at that stage. This "blanket prohibition" on the exercise of marriage for persons without leave to remain was found to breach the right to marry. Further, the Court outlined that the fact that the fee fixed at a level which the applicant could not afford could "impair the essence of the right to marry". This is particularly so due to the fact that those subject to immigration control are often unable to work, as is the case with the Applicant.


The ECtHR also found a breach of the prohibition on discrimination under Article 14 in conjunction with Articles 9 (freedom of religion) and 12. They ruled that there was a clear difference in treatment between the Applicant, a Roman Catholic, and a person who was willing and able to marry in the Church of England.


Readers of the Bulletin will recall that the UK Border Agency announced its intention to abolish the "certificate of approval" scheme by late 2010 or early 2011. In taking this step, the UK government was seeking to remedy a declaration of incompatibility of the scheme with the European Convention on Human Rights made by the UK courts in Baiai and others. The latest news from the UK Border Agency indicates that in light of the above decision, the UK government is taking "swift action to abolish the scheme next year" indicating that they expect the scheme to end in spring 2011.


To view the latest statement of the UK Border Agency in full please click here.

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