R (on the application of Mahmoud Baiai & Others) v Secretary of State for the Home Department

In this case the House of Lords considered a scheme established under section 19 of the Asylum and Immigration (Treatment of Claimants etc ) Act 2004 to prevent sham marriages. 

The scheme required persons subject to immigration control and not settled in the UK who wished to marry here to obtain entry clearance expressly for that purpose or a Certificate of Approval (COA) from the Home Office.  The Secretary of State’s policy was not to grant a COA unless a person had been granted leave to enter or remain in the UK for more than six months, with at least three months remaining at the time of the application, or if there were especially compassionate features.

The House of Lords upheld the Claimants’ argument that the scheme was incompatible with the right to marry contained in Article 12 ECHR.  Although it was open to the Secretary of State to impose reasonable conditions on the rights of a third-country national to marry in order to ascertain whether the proposed marriage was a marriage of convenience, Article 12 did not permit significant restrictions to be placed on all marriages irrespective of whether they were genuine or not.

Monica Carss-Frisk QC represented the Secretary of State.