O’Donoghue and Others v. the United Kingdom

Information Note on the Court’s case-law No. 136

December 2010

O’Donoghue and Others v. the United Kingdom - 34848/07

Judgment 14.12.2010 [Section IV]

Article 12

Marry

Requirement of certificate of approval for immigrants wishing to marry other than in the Church of England: violation

Article 14

Discrimination

Requirement of certificate of approval for immigrants wishing to marry other than in the Church of England: violation

Facts – Under section 19 of the Asylum and Immigration Act 2004, persons subject to immigration control who wish to get married but are not willing or able to do so in the Church of England must apply to the Secretary of State for permission in the form of a certificate of approval, for which they must pay a fee. There is no exemption or possibility of waiver or reduction of this fee, which at the material time was 295 pounds sterling (GBP) (about EUR 330). Under the first version of the scheme – introduced in 2005 – in order to qualify for a certificate of approval applicants had to have been granted leave to enter or remain in the United Kingdom for a period of more than six months and have at least three months of that leave remaining at the time of making the application. The scheme was subsequently amended twice with eligibility for a certificate of approval being extended firstly to applicants who had insufficient leave to enter or remain and then to those who had no leave to enter or remain. Under these new second and third versions of the scheme, applicants could be asked to submit information to show that the proposed marriage was genuine.

The second applicant, a Nigerian national, arrived in Northern Ireland in 2004 where he met the second applicant, to whom he proposed in May 2006. The couple did not seek to marry in the Church of England as they were practising Roman Catholics and, in any event, there is no Church of England in Northern Ireland. They therefore required a certificate of approval. However, as an asylum-seeker the second applicant did not become eligible to apply for a certificate until the third version of the scheme came into effect in June 2007. In July 2007 the first and second applicants applied for a certificate and requested exemption from the fee on the grounds that the first applicant was dependent on State benefits and the second applicant was not permitted to work under the terms of his temporary admission to the United Kingdom, but their application was rejected for failure to pay the fee. Ultimately, a certificate of approval was granted in July 2008 after they succeeded in raising the sum payable with help from friends.

Law – Article 12: Though not inherently objectionable, the requirement for persons subject to immigration control to submit an application for a certificate of approval before being permitted to marry in the United Kingdom gave rise to a number of grave concerns.

First, the decision whether or not to grant a certificate of approval was not based solely on the genuineness of the proposed marriage. The first version of the scheme did not provide for or envisage any investigation of that issue as the decision whether or not to grant a certificate was based solely on whether the applicant had sufficient leave; the second and third versions provided that persons with insufficient or no valid leave to remain could be required to submit information concerning the genuineness of their relationship. In contrast, under all three versions of the scheme applicants with “sufficient” leave to remain qualified for certificates of approval without any apparent requirement that they submit information concerning the genuineness of the proposed marriages.

Secondly, the first and second versions of the scheme had imposed a blanket prohibition on the exercise of the right to marry on all persons in a specified category – foreign nationals with either insufficient or no leave to remain – regardless of whether the proposed marriage was one of convenience or not. There was no justification whatsoever for imposing a blanket prohibition on the right of persons falling within these categories to exercise their right to marry. Even had there been evidence (none was submitted) to suggest that such persons were more likely to enter into marriages of convenience, a blanket prohibition, without any attempt being made to investigate the genuineness of the proposed marriages, restricted the right to marry to such an extent that its very essence was impaired. The existence of an exception on compassionate grounds did not alter the position as it was entirely at the discretion of the Secretary of State.

Thirdly, a fee fixed at a level which a needy applicant could not afford could impair the essence of the right to marry. In view of the fact that many persons subject to immigration control would be unable to work or would fall into the lower income bracket, the fee of GBP 295 was sufficiently high to impair the right to marry. That had remained the case even after the introduction of a system of refunds for needy applicants was introduced in July 2010, as the requirement to pay a fee could still act as a powerful disincentive to marriage.

In conclusion, from May 2006, when the applicants first formed the intention to marry, until they were issued with a certificate of approval in July 2008, the very essence of the first and second applicants’ right to marry was impaired, initially because under the second version of the scheme the second applicant was not eligible for a certificate of approval and subsequently because of the level of the fee charged.

Conclusion: violation (unanimously).

Article 14 in conjunction with Article 12: The first version of the scheme was discriminatory on the ground of religion. The second applicant had been in a relatively similar position to a person with no leave to remain who was willing and able to marry in the Church of England. While such a person was free to marry unhindered, the second applicant had been both unwilling (on account of his religious beliefs) and unable (on account of his residence in Northern Ireland) to enter into such a marriage. Consequently, he had initially been prohibited from marrying at all in the United Kingdom before, following the amendments to the scheme, being permitted to marry only after submitting an application for a certificate of approval and paying a sizeable fee. There had therefore been a clear difference in treatment for which no objective and reasonable justification had been provided.

Conclusion: violation (unanimously).

Article 14 in conjunction with Article 9: The Government conceded that, through being subject to a regime to which those wishing to marry in the Church of England would not have been subject, the first and second applicants’ rights under Article 14, taken together with Article 9, had been breached.

Conclusion: violation (unanimously).

Article 41: EUR 8,500, jointly, in respect of non pecuniary damage, and GBP 295, jointly, in respect of pecuniary damage.

© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.

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