A young couple fall in love and marry. She is British; he is Chilean. Because they are both under 21, immigration rules, which set out Home Office policy, forbid him to settle here with his wife, who has a university place and a promising career ahead. The purpose of the rule is to inhibit the importation of spouses by forced marriage. Forced marriage is a serious matter meriting determined government action, but there is nothing to link the vast majority of young couples affected by the rule with it. The young couple bring judicial review proceedings. The impact of the rule on their right to marry and to live as a family is manifest. The rule itself has a lawful purpose, but the Home Office accepts that it has no bearing on them. How could the courts decide whether the impact on the couple was legitimate without considering in detail the justification for the rule itself? That is what both the Court of Appeal and the Supreme Court did. Had they not done so, the home secretary’s case would have gone unheard. All but one of the judges decided that the impact on the individuals before them was out of proportion to the policy objective. The result was not to stifle policy initiatives designed to inhibit forced marriages; these remain a matter for government alone. It was to ensure that such initiatives conformed to the law by not impacting disproportionately on individuals. This is a critical linkage which recurs in the now well developed law of legitimate expectation, which sometimes requires government to honour its promises even when its policy has legitimately shifted.
Judicial Politics
