O'Donoghue Others -v- the United Kingdom:European Court of Human Rights Chamber judgment given on December 14th, 2010.
Judgment
The court held the United Kingdom should pay €24,500 in damages and expenses and £295 (€348) in pecuniary damage to a Northern Ireland woman and her Nigerian husband for infringement of their right to marry and for religious discrimination.
Background
The applicants are a Nigerian national, Osita Chris Iwu, and three dual British and Irish nationals – Sinéad O’Donoghue (Mr Iwu’s wife), Ashton Osita Iwu, their son, and Tiernan Robert O’Donoghue, Ms O’Donoghue’s son from a previous relationship. All are practising Roman Catholics and live in Derry.
Mr Iwu arrived in Northern Ireland in 2004 and claimed asylum in 2006. In November 2009 he was granted “discretionary leave to remain”, which runs until November 2011. He is not entitled to work.
Ms O’Donoghue has disabled parents and receives benefits and income support. They met in November 2004 and began living together in December 2005. In May 2006, Mr Iwu proposed to Ms O’Donoghue and she accepted.
Under a scheme first introduced in the UK in 2005, Mr Iwu, as a person subject to immigration control, had to have either entry clearance expressly granted for the purpose of enabling him to marry, or a certificate of approval granted under section 19 of the Asylum and Immigration Act 2004.
In order to obtain such a certificate he had to submit an application to the secretary of state for the home department, together with an application fee of £295.
The scheme did not apply to those couples seeking to marry in accordance with the rites of the Church of England.
Following domestic judgments delivered in April 2006 in which it was held that the scheme substantially interfered with the right to marry guaranteed by the European Convention on Human Rights, the first version of the scheme was amended whereby applicants could be asked to submit further information to satisfy the Home Office that the marriage was genuine.
Mr Iwu and Ms O’Donoghue could not marry, however, under that second version of the scheme, as Mr Iwu, who had no leave to remain in the UK at the time, did not qualify for a certificate of approval.
He later qualified under a third version of the scheme, introduced in June 2007, which extended it to those who were awaiting the outcome of an application for leave to remain. However, he could not afford the application fee as he was not allowed to work. His application for an exemption from the fee was refused.
The couple obtained a certificate of approval on July 8th, 2008, after friends helped them to pay the fee. They married on October 18th, 2008.
The applicants complained about the Certificate of Approval Scheme, which required people subject to immigration control to pay a fee in order to marry, and about how that scheme had been applied to them. They relied in particular on article 12 (right to marry) and article 14 (prohibition of discrimination). They also complained that they had not been able to marry unless they did so in an Anglican church.
Decision
The court recalled that a contracting state would not necessarily be acting in violation of article 12 by imposing reasonable conditions – to establish whether a proposed marriage was one of convenience – on a foreign national’s ability to marry. However, the court had a number of grave concerns about the scheme operating in the UK.
Firstly, the decision whether or not to grant a certificate of approval had not been, and continued not to be, based solely on the genuineness of the proposed marriage. Indeed, under all three versions of the scheme, applicants who had “sufficient” leave to remain, qualified for certificates of approval without any apparent requirement that they submit information concerning the genuineness of the proposed marriage.
Secondly, the court was especially concerned that the first and second versions of the scheme imposed a blanket prohibition on the exercise of the right to marry on all persons in a specified category (that is, those, like Mr Iwu, who had no leave to enter), regardless of whether the proposed marriage was one of convenience or not.
Thirdly, the court found that a fee fixed at a level which a needy applicant could not afford could impair the essence of the right to marry. The system of refunding fees to needy applicants, introduced in July 2010, was not an effective means of removing any breach of article 12, as the very requirement to pay a fee acted as a powerful disincentive to marriage.
In conclusion, the right to marry of the applicant couple, clearly in a long-standing and permanent relationship, had been breached from May 2006 (the date from which they formed the intention marry) to June 19th, 2007 (when the third version of the domestic scheme was introduced), because Mr Iwu had not been eligible for a certificate of approval; from June 19th, 2007, to July 8th, 2008, that right had been breached by the level of the fee charged.
There had accordingly been a violation of article 12.
A person without leave to remain who was willing and able to marry in the Church of England was free to marry unhindered. Mr Iwu was, however, both unwilling (on account of his religious beliefs) and unable (on account of his residence in Northern Ireland) to enter into such a marriage.
There had therefore been a clear difference in treatment between Mr Iwu and a person who was willing and able to marry in the Church of England.
As the government had not reasonably or objectively justified such a difference in treatment, the court held there had been a violation of article 14 in conjunction with article 12. It did not consider it necessary to examine whether the scheme had been discriminatory on any other ground (such as nationality).
In relation to discrimination on the ground of religion, the court noted the government had conceded that there had been a breach of Mr Iwu’s convention rights, as he had been subject to a regime to which those wishing to marry in the Church of England would not have been subject.
The full judgment is on www.echr.coe.int