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Press Release: O’Donoghue & others v UK

16 December 2010

Judgment delivered by European Court of Human Rights

The AIRE Centre is delighted to announce that the European Court of Human Rights has delivered its judgment in the case of O’Donoghue & others v United Kingdom. The case concerned the right to marry which was introduced into the Universal Declaration of Human Rights in answer to the Nuremberg laws which prohibited Germans from marrying foreigners. The UK Certificate of Approval required foreigners, except those wishing to marry in the Church of England, to pay large fees to obtain the permission from the Home Office to marry. The fees were payable over and above the even larger fees payable if people to wished to apply change their immigration status after marriage.

The AIRE Centre represented the couple a dual Irish-British national, her Biafran husband, with their two children who all live in Northern Ireland and care for her elderly disabled parents. All the family are practicing Catholics.  

The Certificate of Approval scheme was introduced in 2005 and has been several times struck down by the UK courts. Its full abolition will come into effect on 2011. Although the scheme purported to have been put in place to reduce the incidence of sham marriages, it was a blunt instrument which affected a much wider group of people, and crucially did not address the important question of whether the proposed marriages were genuine or not. The issue or withholding of certificates was not dependent on the genuineness of the marriage but on the immigration situation of the spouse. The fees charged went up and up from £135.00 to £295.00. The couple first contemplated matrimony in 2005 and were formally engaged in early 2006. The scheme in place at the time was a complete bar to them marrying. By 2007 they became eligible for the discretionary issuing of a certificate, but could not afford the mandatory fee. Friends eventually had a whip round in the pub to raise the money for the fee and the couple were able to marry in October 2008.

The Court, unanimously, found that the scheme violated the right to marry (Article 12 of the Convention), that it was discriminatory in its application (Article 14 of the Convention) and that it was discriminatory on the ground of religion, (Articles 9 and 14 of the Convention).

 In making the findings, the Court was concerned that the scheme was not based on the genuineness of the proposed marriage but on the duration of their permission to be in the UK. The Court held that there was no justification whatsoever for imposing a blanket prohibition based only on the individual’s immigration situation. The validity of the scheme was challenged in the UK courts in the case of R (on the Application of Baiai) v SSHD in the High Court, Court of Appeal and House of Lords. The AIRE Centre intervened as third party in the proceedings in the House of Lords. The Strasbourg Court attached weight to the views expressed by Baroness Hale and Lord Bingham in that case who had both considered that the scheme was too broad and unfocussed on the problem it claimed to address, and that the fees charged were unacceptable.

This case was originally lodged jointly with Law Centre NI. When they ceased to be involved, the applicants were subsequently assisted by John Fahy and Company Solicitors, Derry. The AIRE Centre was assisted in litigating these issues as an intervenor in the House of Lords by Richard Drabble QC, Eric Fripp, Charles Banner and Dawson Cornwell Solicitors (all acting pro bono).

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