Neutral Citation Number: [2006] EWHC 1454 (Admin)
Cases No: CO/1460/2005

IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 16 June 2006 
Before:

THE HONOURABLE MR JUSTICE SILBER

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Between:
THE QUEEN
on the applications of
MAHMOUD BAIAI & IZABELA TRCINSKA
Claimants
And

JOINT COUNCIL FOR THE WELFARE OF IMMIGRANTS
Intervener

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Ramby De Mello, Satvinder Singh Juss and Adrian Berry
(instructed by David Tang & Co) for the claimants
Monica Carss-Frisk QC,  Angus McCullough and Richard
Mumford (instructed by Treasury Solicitor) for the Defendant
Richard Drabble QC and Eric Fripp (instructed by Joint
Council for the Welfare of Immigrants) for the Intervener
- - - - - - - - - - -

NO ORAL HEARING TOOK PLACE
Written submissions were supplied on 19,24 and
26 May 2006

- - - - - - - - - - -
JOINT COUNCIL FOR THE WELFARE OF                     Intervener	IMMIGRANTS	
JUDGMENT
Summary 

         (This does not form part of the judgment).

1. Paragraph 1 sets out the issue on this application, which is whether the refusal by the Secretary of State to grant a Certificate of Approval to marry to the first   claimant on the grounds that he was unlawfully in this country was incompatible with his rights under ECHR. Paragraphs 2 and 3 give details of the refusal letters of 15 February 2005 and 15 April 2005.

2. Paragraphs 4 to 6 explain the earlier history of this litigation in the previous judgments. The chronology is set out in paragraph 7.Details of the section 19 scheme are described in paragraphs 8-13.

3. The background to the refusal letters is explained in paragraphs 14-15 Paragraphs 16-22 comments on the relevance of the first judgment. 

4. The background to the article 12 claim is set out across 24-26. Paragraphs 27-29 describe the advantages that the first claimant would obtain by getting married to an EEA National. Paragraph 30 explains why the immigration status of the first claimant is relevant. 

5. The issue of        whether the measures in the section 19 regime are designed to meet the legislative objective in relation to an illegal immigrant are considered in paragraph 30 onwards. The approach of the Secretary of State is set out in paragraphs 33 and 34. Paragraph 36 explains what the Court of Appeal in Mahmood stated about the need for effective immigration control and the avoidance of   queue jumping. 

6.  Paragraphs 41 – 44 explain that the article 12 right does not mean that a person is entitled to marry in a country of his or her choice. Paragraphs 45- 47 show why the reasoning in the first judgment which led to the conclusion that parts of the section 19 regime were incompatible with article 12 rights do not apply in the case of an illegal immigrant. Paragraph 48 explains that substantial deference has to be allowed to the Secretary of State.

7. Paragraphs 50-53 explain why the means used to impair the article 12 right in the section 19 regime are no more than necessary to accomplish the objectives of illegal immigrants and do not interfere with their article 12 rights

8. The background to the article 14 claim is set out in paragraphs 55-58. In paragraphs 59-61 it is explained why article 14 claim must be rejected.

9. Paragraphs 62-70 deal with the consequence of the first claimant having been granted temporary admission. This passage was included as there was argument on this issue even though it does not have any effect on the outcome as the first claimant had not been given temporary admission on either of the occasions when the Secretary of State refused his application for a Certificate of Approval.    

10. Paragraphs 71 -74 explain the position of section 19 regime in the light of the present judgment and of the first judgment. . Paragraphs 75 and 76 explain why a third judgment was necessary in this case and why no oral submissions were made.

11. The conclusions are then set out in paragraphs 77 and 78.  

 

 

The Honourable Mr. Justice   Silber:

I. Introduction 

1. This application raises the issue of whether the  decision by the Secretary of State for the Home Department (“ the Secretary of State”)  to refuse to grant   a   Certificate of Approval (“COA”) to marry   under the scheme introduced by  section 19 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004(“the 2004 Act”)   to Mr. Mahmoud Baiai (“the first claimant”) on the grounds that he  was unlawfully in this country, was compatible with his rights under the European Convention on Human Rights (“ECHR”).  The claimants and the Intervener   contend that the refusal of the Secretary of State constituted an interference with the first claimant’s rights under the ECHR   while the Secretary of State submits that his rights were not infringed by the refusal.  Subject to certain exceptions, this scheme requires   people subject to immigration control to obtain from the Secretary of State for the Home Department (“the Secretary of State”) a COA in order to be allowed to marry in this country. 

2. The Secretary of State refused the first claimant’s application for a COA   by a letter dated  15 February 2005(“ the first refusal letter”). After the first claimant and his partner Izabela Trzcinska (“the second claimant”) had challenged that refusal letter by way of the present judicial review proceedings, the Secretary of State reconsidered his decision to refuse to grant   a COA to the first claimant in the light of the additional reasons set out in the judicial review application. 

3. By a letter dated 15 April 2005 (“the second refusal letter”), the Secretary of State maintained his earlier refusal of the grant of a COA to the first claimant.  In both refusal letters, the Secretary of State explained, as is not disputed,  first that the first claimant  did not have leave to enter or to remain in the United Kingdom and  second that there were no exceptional circumstances in his case. 

4. When this claim together with two similar applications came before me earlier this year, I was asked by counsel to determine an agreed   list of 21 issues and many more sub-issues formulated by counsel for the claimants and the Secretary of State   relating to the compatibility with the ECHR of various features   of the scheme set out in the 2004 Act, which affected the right to marry of those covered by immigration control.   In a judgment handed down on 10 April 2006 with the neutral citation number [2006] EWHC 823 QB  [Admin] (“the first judgment”), I held that various aspects of the scheme set out in the 2004 Act   were incompatible with both   article 12 and article 14 of the ECHR. I, like all counsel, expected that my rulings on this long list of issues prepared by counsel for all the claimants and the Secretary of State would then enable all the outstanding issues between the parties to be resolved.

5. When I was dealing with the subsequent claims for damages by the present claimants and others, it became clear that this long list of issues did not deal with the question of whether the Secretary of State was entitled to reject the application of a person unlawfully in this country without infringing his rights under the ECHR and that is the issue with which I am now concerned . When I handed down the second judgment on 10 May 2006 with the neutral citation number [2006] EWHC 1035 (Admin ) ( “the second judgment”),  I was  then asked by counsel for the claimants and the Secretary of State  to resolve a further issue:

“as to whether the Secretary of State was entitled to refuse the application of the claimant Mahmoud BAIAI (CO/1460/2005) for a Certificate of Approval (“COA”) without infringing his rights under the European Convention on Human Rights”

 
6. For reasons which I will explain in paragraph 76 below, I was asked not only to resolve this matter as a matter of urgency but also unfortunately without the benefit of oral submissions although I have received detailed written submissions from counsel for the claimants, for the Secretary of State and for the Intervener. The Secretary of State submits that notwithstanding the first judgment, the section 19 scheme does not involve a disproportionate interference with the Convention rights of those (like the first claimant) who are illegally present in this country.  Counsel    for the   claimants and for the Intervener   contend that the section 19 scheme does interfere with the first claimant’s rights under articles 12 and 14 of the ECHR. There was also argument as to the right of the first claimant to receive a COA after the Secretary of State had granted to him   temporary admission on 24 May   2005, which was   after the first claimant had received the first and second refusal letters. To understand the rival submissions, it is now necessary to set out the facts relating to the claimants before setting out the main features of the section 19 regime.
II. The Chronology.

7. The relevant facts relating to the claimants are that: 

a. the first claimant was born on 2 September 1971. He was  and remains an Algerian national. According to his witness statement of 2 March 2005, he entered the United Kingdom as an illegal immigrant in February 2002. In about October 2004 he started living with the second claimant, whom he had met two months earlier. She is a Polish national who was born on 2 July 1979 and who is working in the United Kingdom following Poland’s accession to the EU and so she is an EEA/EEC national;

b. under cover of a letter of 31 January 2005, the first claimant applied to the Home Office for a COA  and this was refused by the Secretary of State in the first  refusal
letter dated 15 February 2005 in which it was explained that he had no valid leave to enter or remain in the United Kingdom and that there were no exceptional compassionate circumstances applicable in his case;

c. the immigration authorities first became aware of the first  claimant’s presence when he applied for a COA to marry after what he described as his illegal entry to the United Kingdom. When he received   the first refusal letter, the first claimant was notified that he was required to make his own arrangements to leave the United Kingdom immediately;

d. by a letter dated 11 April 2005, the Secretary of State requested the first  claimant to attend  an interview to ascertain his immigration status in accordance with the usual practice of the Secretary of State  when a person present in the United Kingdom comes to the attention of the authorities;

e. on 12 April 2005, the first  claimant’s legal representatives replied stating that they did not consider such an interview to be appropriate in the light of the judicial review application which the first  claimant had instituted on 8 March 2005 in order to challenge the first refusal letter and the section 19 regime;

f. in his judicial review application , the first claimant advanced reasons not only why the section 19 regime was unlawful but also why the Secretary of State ought to exercise his discretion to grant him a COA notwithstanding the fact that he did not satisfy the relevant  criteria. The Secretary of State considered these matters and he issued the second refusal letter dated 15 April 2005, giving additional reasons for maintaining his refusal to grant a COA to the first claimant;

g. in response to the letter of 12 April 2005,  the Secretary of State sent a status questionnaire on 9 May 2005  which  the first  claimant  was asked to complete and to return so that the Secretary of State could determine the immigration status in the United Kingdom  of the first claimant. The first  claimant was also informed that his failure to complete and return the form or to attend  an interview which he had  already declined to do would result in the Secretary of State considering him to have entered and remained in the United Kingdom illegally;

h. the first  claimant did not complete the questionnaire but in a letter dated 16 May 2005, the first claimant’s legal representatives explained that

“Our client has never claimed asylum and does not intend to do so. It is conceded that he entered the UK as an illegal entrant in or about February 2002.  No doubt you are aware that our client has obtained permission to apply for judicial review. His case will be fully argued before the court and we do not believe that it is appropriate to return this questionnaire to you at this stage”; 

j. as the first   claimant had admitted through his legal representatives that he had entered the United Kingdom illegally, the Secretary of State did not pursue his request for the first  claimant to attend for an interview or to complete the questionnaire as the purpose of interviewing the first  claimant was to ascertain whether he had entered the United Kingdom lawfully;

k. by letter dated 24 May 2006, the Secretary of State served on the first  claimant form IS96ENF, which specifically stated that the papers which granted him temporary admission  were served on the first  claimant “as an illegal immigrant” and the first  

claimant was informed of the reporting and residence restrictions imposed on him. He was also notified that he was liable to be detained;

l. on 15 May 2006, the first claimant was provided with form IS 75 and he was asked to provide the immigration authorities with any reason why  he might consider himself eligible to remain in the United Kingdom and any justification as to why he should not be removed or required to leave the United Kingdom;

m. by a letter dated 20 June 2006, the representatives of the first claimant returned the form IS 76 stating that the first claimant had already explained why he should be allowed  to remain in the United Kingdom and confirming why he did not wish to advance any other grounds; and

n. on 23 April 2006, the first claimant was granted an extension to his temporary admission.

III. The Section 19 Scheme
8. Section 19 of the 2004 Act imposes certain requirements before a person subject to
immigration control is able to marry, otherwise than in accordance with the rites of
the Church of England under Part II of the Marriage Act 1949. A person “subject to
Immigration control” is a person who is not an EEA national and who requires leave
to enter or remain in the UK: section 19(4) (a). The first claimant, who is a national of Algeria, is such a person.

9. Section 19(3) of the 2004 Act provides that:

“(3) The superintendent registrar shall not enter in the marriage notice book notice of marriage to which this section applies unless satisfied, by the provision of specified evidence, that the party subject to immigration control-
(a) has an entry clearance granted expressly for the purpose of enabling him to marry in the United Kingdom;
(b) has the written permission of the Secretary of State to marry in the United Kingdom, or
(c) falls within a class specified for the purpose of this paragraph by regulations made by the Secretary of State.”

10. The relevant statutory provision in the first claimant's case is section 19(3) (b) because he is an illegal entrant to the United Kingdom and so at the time of the first and second refusal letters, he plainly did not have entry clearance for the purpose of marriage within the meaning of section 19(3) (a), nor did he fall within a specified class for the purposes of section 19(3) (c). He therefore needed the written permission of the Secretary of State to marry in the United Kingdom pursuant to section 19(3) (b).

11. Permission by the Secretary of State is granted by the issuing of a COA pursuant to the procedure provided for in the Immigration (Procedure for Marriage) Regulations 2005 (“the 2005 Regulations”) for which a fee of £135 is payable on each application for a COA.

12. The practical effect of the new regime is that applicants, who first do not have a valid right to enter or remain in the United Kingdom beyond a short term status (i.e. more than 6 months with more than 3 months remaining at the time of the application for the COA) or second have an initial 
application for immigration status or an appeal outstanding for 18 months or third have compelling compassionate circumstances, which make it unreasonable to expect the couple to travel and marry abroad, the expectation is that either the couple should travel abroad and marry, and then for the partner requiring entry clearance to obtain this from abroad on the basis of his or her marriage; or for the individual requiring entry clearance to travel abroad (with or without his or her fiancée) to obtain entry clearance, from abroad, on the basis of his intended marriage in the UK.  The compassionate circumstances may be seen to be applicable where neither expectation is reasonable.

13. The Secretary of State contends first   that as the first claimant was   an illegal entrant into the United Kingdom who did not have   valid leave to enter or remain, he did not qualify for a COA under the general policy set out in the Guidance and second that there were no exceptional compassionate circumstances which would have merited a grant of discretion in his favour.

IV. The Background to the Refusal Letters.

14. The Secretary of State’s decisions in the refusal letters have to be considered against the background of three important facts. First, it is not suggested by   the first claimant that there were any exceptional compassionate circumstances which made it unlawful for the Secretary of State to refuse the COA on that basis.

15. Second, insofar as counsel for   the first claimant contends that the Secretary of State should have accorded weight to the fact that the first claimant had been granted   temporary admission to the United Kingdom, this submission fails to appreciate that the first and second refusal letters were dated 15 February 2005 and 15 April 2005 respectively   while   temporary admission was not   granted to the first claimant   until 24 May 2005. So at the date of both of   the refusal letters, the first claimant was an illegal immigrant, who had not been given temporary admission. Third, the claimants’ submissions have referred to applications being made under various EU enactments but they are not the subject of the present applications and so I will not consider them.
  
V.  The Relevance   of the First Judgment.

16. The claimants and the JCWI contended   that the Secretary of State was not entitled to reject the application for the COA   and they point in support to   the orders made in the first judgment in which I made declarations of incompatibility in respect of the section 19 regime.  I do not consider that those orders mean that that Secretary of State was obliged to accede to the first claimant’s application for a COA in the light of   the following factors, which I set out in no particular order of importance.

17. First, section 4 (6) of the Human Rights Act 1998 provides that   a declaration of incompatibility:
“..(a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and
(b) is not binding on the parties to the proceedings in which it is made”

18. Second, the first judgment was concerned with those who had a right to enter and to remain in the United Kingdom. None of the issues which I was asked to resolve were concerned with the position of somebody, who is unlawfully in this country. Such a person’s status will be relevant on the extent of his or her ECHR rights. An illegal immigrant   will be entitled to the absolute rights specified in the ECHR, such as those set out in article 3. Where, however, a right under the ECHR is qualified then, as I will explain in paragraphs 33 to 38   below, the fact that the person concerned is   in the United Kingdom illegally   is a factor which can be and frequently should be taken into account   first in   the balancing exercise involved in determining the existence and extent of such qualified convention rights and second when considering   whether the requirements of proportionality have been satisfied. This means that when the qualified   convention rights of an illegal immigrant (such as the first claimant) are being considered, it is necessary to attach weight to the legislative objective of effective immigration control against illegal immigrants, which, as I will explain, is an integral part of the policy of the Secretary of State. As I explained in paragraph 61 of the first judgment, article 12 is not an absolute right as it requires a balance to be struck.  

 19. It follows that the   fact that an applicant for a COA is an illegal immigrant must be a relevant factor on the issue of whether the grant of the COA would be consistent with effective immigration control.  When I was given the agreed   list of issues to be resolved in the first judgment, none were specifically   concerned with the position of the illegal immigrant applicant. Thus, the specific consequences of an applicant being an illegal immigrant were not considered in the first judgment and nothing in it resolves the convention rights and in particular the article 12 rights of  a person in that position.  In consequence, the declaration of incompatibility does not mean that the Secretary of State was obliged to grant a COA to an illegal immigrant such as   the first claimant or that that his decision to refuse a COA to the first claimant can be quashed.
 
20. Third, the agreed list of issues which were the subject of the first judgment, led to very general submissions while in the present case I am concerned with specific facts. My critical findings in respect of non-Anglican religious ceremonies are not relevant as the first and second claimants were intending to marry in a registry office and that fact would have been known to the Secretary of State at least when he issued the second refusal letter as both the   claim form and the first   witness statement of the first claimant refer to his attempts to marry in a registry office and they both pre-date the second refusal letter. Different considerations apply to such a wedding especially as I explained in paragraphs 71 and 72 of the first judgment, there is detailed cogent evidence that registry offices have frequently been used for sham weddings.

21. Fourth, one of these reasons why I considered that the section 19 regime to be incompatible with the ECHR in the case of people lawfully in the United Kingdom was that there was no consideration of their particular circumstances. The terms of the first and second refusal letters show first  that the 

Secretary of State considered carefully the first claimant’s application for a COA including his personal circumstances and second that he refused the application after having considered the first claimant’s  full circumstances and his representations  as is particularly clear from the second refusal letter. 

22. For all these reasons, the reasoning and conclusions in the first judgment do not mean that the decision of the Secretary of State to refuse the first claimant’s request for a COA must be impugned.

23. My task is to ascertain if the article 12 and article 14 rights of the first claimant have been infringed and I will focus my attention particularly on those conclusions in the first judgment, which led to the claimants succeeding in order to decide if those conclusions are applicable to the first claimant, who was an illegal immigrant.
VI .The Article 12 Claim.
(i) Introduction  
24. Article 12 of the ECHR provides that:
“Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right” 

25. In the first judgment, I considered whether the section 19 regime interfered with the article   12 rights of those who were in the United Kingdom and who were subject to immigration control but who were here lawfully. I concluded that:
(i) “In my view, the jurisprudence of the European Commission on Human Rights permits the introduction of legislation for the purpose of avoiding immigration control notwithstanding that this legislation   might interfere with the right to marry.” (paragraph 57 of the first judgment);
(ii) “…‘the legislative objective [of preventing sham marriages entered into so as to avoid immigration control] is sufficiently important to justify limiting the fundamental [article 12 right]’” (paragraph 73 of the first judgment); and
			(iii) “...the article   12 claim succeeds as the section 19 regime is not 						proportionate and it constitutes a  substantial interference with 							article 12 rights…” (paragraph 110 of the first judgment) 
 26. The reason why the section 19 regime was not proportionate in respect of those who were lawfully in the United Kingdom   was because I concluded   that that the regime failed to comply with two of the three requirements of proportionality specified in the classic approach propounded by Lord Steyn in R v Secretary of State for the Home Department ex parte Daly [2001] 2 AC 532, 547, namely the requirements that: 
“..(ii) the measures designed to meet the legislative objectives are rationally connected to it; 

and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective”. 
27. I must now consider if these two crucial requirements have been satisfied   in the case of the first claimant as he was an illegal immigrant at the time of the refusal letters so that, according to Miss Carss-Frisk, his article 12 rights were not infringed. These two requirements have to be considered in the light of the facts first that   the first claimant was at the time of each of   the refusal letters liable to be detained and deported as an illegal immigrant and second that on his marriage to the second claimant, his Polish partner, the first claimant’s status in this country would or might change radically as a consequence of   this marriage to an EEA national. The second factor is important because the   first claimant has explained in his sixth witness statement dated 26 April 2006 that on marrying his partner:

“I would obtain permission to remain in the United Kingdom under EU law and EU     residence document”.
28. As I will explain in paragraphs 33 and 34   below, the concern of the Secretary of State is the need to have effective immigration control, which, as   the Court of Appeal has stated, means that there must be   consistency of treatment between one aspiring immigrant and another with the result that that there should be no queue-jumping by those who enter the United Kingdom illegally without any form of entry clearance over those who apply in the proper manner for permission to enter the United Kingdom.

29. In summary, the first claimant on marriage would obtain the right to residence in the United Kingdom if his wife was exercising treaty rights in the United Kingdom. Even though he entered the United Kingdom illegally, the first claimant would be entitled to a residence card if he entered into a marriage to an EEA national, who was exercising treaty rights in the United Kingdom. This right arose under regulation 14 of the Immigration (European Economic Area) Regulations 2000 which were in force at the time of both refusal letters and which remained in force until 30 April 2006, when they were replaced by the Immigration (European Economic Area) Regulations 2006.   Further, after four years, the first claimant would then become entitled to permanent residence if his wife was still exercising treaty rights. A residence permit can be refused if the marriage is shown to be marriage of convenience in the form of a “sham” marriage or if it can be demonstrated that the EEA national is not exercising his or her treaty rights. Miss Alison Bennett, an Assistant Director of the Immigration and Nationality Directorate of the Home Office, has stated   that it is very difficult in practice to prove that a marriage is not genuine after it has taken place. The further   advantages which the first claimant would enjoy by marrying an EEA national, the second claimant, are very great and in some respects, they were greater than those enjoyed by those who marry British nationals; these advantages are   set out in paragraphs 68 and 69 of the first judgment and so I will not repeat them. Even if the first claimant did not acquire these rights, he would still be able to rely on his marriage to an EEA national resident in the United Kingdom to challenge a removal direction issued by the Secretary of State on the basis that such removal would infringe his article 8 rights because of the difficulties, which his wife would experience if she had to move to Algeria and which he has described in his witness statements. Although such a claim would probably fail in the light of the present state of the law, the first claimant would be able to use this claim (and in particular that he was married to a United Kingdom resident) to   delay his removal for a long 

period in the light of the serious delays in the immigration and the immigration appeal system.
 
30. The main submission of counsel for   the first claimant is that the immigration status of the first claimant is not a relevant factor when considering his right to marry. I am unable to agree because as I have explained in  paragraphs 46 to 59 of the first judgment  the Secretary of State is entitled to impose restrictions or conditions on the right to marry in the interests of an effective immigration policy without  infringing article 12 rights provided that each condition or restriction satisfies the three requirements of proportionality. In addition, I explained in paragraphs 64 to 73 of the first judgment, the legislative object of preventing sham marriages entered into so as to avoid immigration control is sufficiently important to justify limiting article 12 rights.  The issue to which I must now turn is whether the requirements of immigration control against illegal immigrants means that the decisions to refuse the first claimant a COA were   proportionate. That exercise entails considering the two issues on which the Secretary of State failed at the first hearing.

 (ii) Are  “the measures [in the section 19 regime]   designed to meet the legislative objectives … rationally connected to it” for an illegal immigrant?
31. While   the first judgment was concerned with the position of people lawfully present in the United Kingdom, the position of the first   claimant   at the time of both the first and second refusal letters was radically different because he was an illegal immigrant without any right to remain in the United Kingdom. The Secretary of State contends that the fact that the first claimant was an illegal immigrant was of critical, if not crucial, importance. The case for the first   claimant and the JCWI is that the immigration status of the first claimant is irrelevant to the decision as to whether to grant him a COA.
32.  In my opinion as I will explain, the fact that the first claimant was an illegal immigrant is of critical importance because to allow him to marry an EEA national and thereby to   obtain the right of residence in spite of the fact that he had entered the United Kingdom illegally would undermine immigration policy with the result that the Secretary of State’s decisions in the two refusal letters  to refuse a COA to the first claimant   was “rationally connected” to his policy of immigration control. So  this requirement of the proportionality test was satisfied.
33. Evidence has been adduced by the Secretary of State in the form of a witness statement from Miss Bennett, who explains that the Secretary of State “attaches great importance to maintaining effective immigration control”. He considers that:
 “there is a distinction between (i) those who have leave to enter or remain (albeit short-term or limited leave) and so have a right to be present in this country; and (b) those who have no such right, being either illegal entrants or over-stayers”. 
34. Miss Bennett states that the Secretary of State: 
	“..considers that the importance of maintaining effective immigration control provides  a powerful justification for his policy in relation to someone in[the claimant’s] position, who is an illegal immigrant, having no leave to enter or remain in the [United Kingdom]” .

35. I would add that this point is important because an illegal immigrant would have a very great incentive to marry an EEA national as his status   after such a marriage would change overnight from that of somebody liable to be removed to a person with all the rights to which I referred in paragraph 29 above. That means that there would be an incentive for an illegal immigrant to enter into a sham marriage for all those reasons. In addition the policy of the Secretary of State would mean that prospective immigrants might be deterred from entering the United Kingdom illegally as they would know that they could not by-pass the system of immigration control by marrying an EEA national.
36.  The reasoning of the Secretary of State as stated by Miss Bennett is also consistent with the views  expressed by the Court of Appeal in R (Mahmood) v Secretary of State [2001] 1 WLR 840, 855), which were  that:
i.“A state has a right under international law to control the entry of non-nationals into its territory, subject always to its treaty obligations” per Lord Phillips of Worth Matravers MR at 861g [55];

ii.“Firm immigration control requires consistency of treatment between one aspiring immigrant and another” per Laws LJ at 850g [23]; and that
iii.“if the established rule is to the effect- as it is- that a person seeking rights of residence here on grounds of marriage (not being someone who already enjoys a leave, albeit limited to remain in the United Kingdom) must obtain an entry clearance in his country of origin , then a waiver of that requirement in the case of someone who has found his way here without an entry clearance and then seeks to remain on marriage grounds,  having no legitimate claim to enter, would in the exceptional circumstances to justify the waiver, disrupt and undermine firm immigration control because it would be manifestly unfair to other would-be entrants who are content to take their place in the entry clearance queue in their country of origin” per Laws LJ at 850 g-h [23].
37. These statements establish first  that   the Secretary of State   should  attach importance to the fact that an applicant for a COA is  a person who  is illegally in this country, second that he  should not regard an illegal immigrant as having similar rights to someone who has permission to be here and  third that he should not allow  illegal immigrants  to take advantage of their  illegal presence to obtain the same rights as are available to people, who have permission to be in the United Kingdom. To do otherwise, would in the words of Laws LJ: 
 “disrupt and undermine firm immigration control because it would be manifestly unfair to other would-be entrants who are content to take their place in the entry clearance queue in their country of origin”.
 38. All   these consequences follow from the need to have a  proper and fair system of immigration control, which precludes any form of queue-jumping by illegal immigrants   over those having to apply from abroad for permission to come to the United Kingdom. It follows that a policy of precluding illegal immigrants   from obtaining COAs  and in consequence from obtaining further rights  is rationally connected to the policy of immigration control as otherwise, in the words of Laws LJ which I have just quoted, it would be   “manifestly unfair to other would-be entrants”.

39. This conclusion is supported  by the submission of  Miss Carss- Frisk, which I accept and which is  that it is helpful to bear in mind   by way of analogy,  that the present  requirement for persons unlawfully present in the United Kingdom  to go home and get appropriate entry clearance, is generally considered to be a proportionate interference with the right to  respect for family life under Article 8, where a person has a developed family life in the United Kingdom; this is so even though in many cases this may entail a period of separation from a person's partner or other family as was explained in Mahmood’s case (supra) especially  at paragraphs 23-26 and 65-67. 

40. In other words, I agree that there is no good reason why the first claimant should be in a better position under article 12   than the claimant in Mahmood was under article 8. In the same way as Mr. Mahmood was not allowed to take advantage of his illegal presence to  obtain rights which were only available to somebody who had permission to be here, the first claimant   should not in my view be able to circumvent the need to obtain entry clearance by being permitted   to marry the second claimant and thereby obtain the advantages of having been given permission to enter the United Kingdom, which he had neither sought nor obtained.

 41. In reaching that conclusion, I have considered, but rejected,   the submission of JCWI that “nothing
in the case law shows an ability to refuse to allow an individual to enter into a genuine marriage on the basis of his or her immigration status rather than a decision that the marriage is not genuine”. It is clear   that the article 12 right does not mean that   person is entitled to marry in the country of his or her choice and there is no case which supports such a proposition. 

42. Indeed there are   decisions to the contrary in the sense that they show that article 12 does not confer on   an individual the   right under article 12 to get married wherever he wishes to do so especially where there are countervailing   immigration control considerations. So in Application No. 9773/82 v United Kingdom, [1982] 5 EHRR 296, the European Commission found to be manifestly ill-founded, complaints of breaches of Articles 8, 12 and 14 of the ECHR where entry clearance was refused for the Philippine fiancée of a disabled man of limited means on the basis that she did not have the means to maintain and support herself without access to public funds. The Commission observed that there was no evidence on the file that there would be any legal obstacles preventing the applicant from marrying his fiancé in the Philippines.  The Commission explained that the article 12 right “does not in principle, include the right to choose the geographical location of the marriage” (page 296) and that “the Commission considers that the limitation of immigration possibilities to only those people who will definitely not create an economic burden on the host state is not of itself an unreasonable or arbitrary requirement” (page 297). 

43. Similarly, in Application No.10914/84 v Netherlands (1986) 8 EHRR 308, both applicants were present in the Netherlands and they complained that they would be prevented from marrying there because of a decision to expel the intended husband to Morocco.  The Commission responded to the contention that the parties had a right to marry in the Netherlands by stating at page 309 that:
“Article 12 of the Convention does not guarantee the right to marry in a particular country, or under a particular legal system.” 

44. These cases and the decision in Klip and Kruger v The Netherlands Application No. 33257/96, 91 A-Dr. 

66 (which I explained in paragraphs 53 and 54 of the first judgment) establish the right of a state to refuse to consent to a marriage on the basis of immigration control. In the light of this conclusion and the factors set out in paragraphs 33 to 40 above, I conclude that that the approach of the Secretary of State to refusing a COA to an illegal immigrant was “rationally connected” to the objective of effective immigration control. In reaching that conclusion, I have also considered   the application to an illegal immigrant of the five reasons which I outlined in paragraphs 78 to 89 of the first judgment as preventing the section 19 regime being compatible with the article 14 right  of those who were lawfully in this country. Those reasons   are not applicable to those (like the first claimant) who are not lawfully in the United Kingdom as their application for COAs can be refused lawfully on thee discreet and cogent   ground of being pursuant to the   policy of immigration control against those who have no right to be in the United Kingdom and which I have explained in paragraphs 33  to 40 above. It is this crucial factor, which “trumps” or overrides the five reasons set out in the first judgment. The second reason set out in paragraphs 79 to 86 of the first judgment (which is probably the most important reason for my decision) relates to the treatment of   religious non-Anglican marriages but that reasoning   does not apply where the applicant for a COA, like the first applicant, intends to marry in a registry office; as I explained in paragraph 71 of the first judgment, there was a great deal of evidence which shows that such marriages are regularly used for sham marriages.
45. The  reasons in the first judgment  for finding that the section 19 regime was not rationally connected to the legislative objects, which I considered decisive when considering the position of those subject to immigration control do not apply to those who are illegally in this country because, as I have already pointed out, Miss Bennett has explained that the Secretary of State considers correctly in my view  that the Secretary of State is entitled to draw a  distinction between “(i) those who have leave to enter or remain…and so have a right to be present in this country; and (ii) those who have no such right, being either illegal immigrants or over-stayers”. My first judgment was dealing with those in category (i) and all my comments in that judgment have to be considered in that context  while I am now dealing with the totally different position of those in category (ii) and  different considerations apply to them  essentially for the reasons put forward both by Miss Bennett and  in Mahmood ( supra).
46. I am aware that the   report of the Parliamentary Joint Committee on Human Rights was critical of the section 19 regime and the JCWI relies on these criticisms. It is, however, noteworthy , as Miss Carss- Frisk points out that although the passage from the report of the Parliamentary Joint Committee on Human Rights on the section 19 regime relied upon by the JCWI,  is very critical of the section 19 regime, this criticism states (with my emphasis added) that “It [the section 19 regime] is not confined to those who are unlawfully in the United Kingdom (overstayers and illegal immigrants)”.  This comment suggests that the Joint Committee’s criticisms of the section 19 regime might well not apply to illegal immigrants, such as the   first claimant or at least  that those who are unlawfully in the United Kingdom are in a different position from those who are lawfully here for the purposes of the compatibility of the section 19 regime with article 12.

 47. As I explained in the first judgment, I concluded that   the section 19 regime for those lawfully in this country was not rationally connected to meet its legislative objectives. In my view, the position is different for those illegal entrants in the United Kingdom as the need for proper immigration control would mean that a policy of refusing to give COAs to those who are illegally in this country (in the absence of compassionate circumstances) would be rationally connected to the objectives of having proper immigration control and of 

avoiding queue-jumping, as I have described in the last two paragraphs. 
48. Until now, I have been assuming that the Secretary of State had the ordinary degree of deference but as I explained in paragraphs 63 of the first judgment, “the Secretary of State and Parliament are entitled to a substantial degree of deference in determining what restrictions, if any, are appropriate to impose on article 12 rights”.  That would constitute an additional reason for concluding that the measures in the section 19 regime are “rationally connected” to the legislative objectives of maintaining immigration control against those unlawfully in the United Kingdom or those with only a limited right to remain in the United Kingdom.

49. It is appropriate finally   to  refer again to the statement in paragraph 90 of the first judgment in which I stated that “it is noteworthy, as Mr. Drabble submits that none of the Strasbourg case law reveals a legal system which refuses to allow a marriage with its territory where the marriage is genuine and not a sham”. In the first judgment, I had also referred to the   cases of Application No. 9773/82 v United Kingdom  and of Application No.10914/84 v Netherlands to which I have just referred. They establish, as I explained in paragraph 57 of the first judgment that “the jurisprudence of the European Commission on Human Rights expressly permits the introduction of legislation to prevent marriages entered into for the purpose of avoiding immigration control notwithstanding that this legislation might interfere with the right to marry”. So   regrettably, my statement in paragraph 90 is incorrect but I did not use that statement to justify my conclusion which I had already stated in the immediately preceding paragraph and which was  that:

 “As I have concluded for the reasons which I have set out, the measures in the regime designed to meet the legislative objectives are not rationally connected to it, and so it follows that the regime is not proportionate and that it constitutes an infringement of Article 12 rights”. 
 (iii)Are “the means used to impair the right or freedom  ... [in the section 19 regime] no more than is necessary to accomplish the objective” for an illegal immigrant?

50. Before dealing with the claimants’ contentions that the means used by the Secretary of State go far further than is necessary to achieve the   objectives of preventing sham marriages, it is necessary to bear in mind that I am being asked to appraise matters of which the legislature and the executive have much greater knowledge than the courts would have. Thus, I approach the claimants’ submissions on the basis that   I should be reluctant to interfere with a decision made by Parliament. The role of the courts on this issue was explained by Lord Nicholls of Birkenhead in Wilson v First County Trust (No 2) [2004] 1 AC 816 at page 844 in this way:
			
“70. In approaching this issue, as noted in R v Johnstone [2003] 1WLR 1736, 1750, Para 51, courts should have in mind that theirs is a reviewing role. Parliament is charged with the primary responsibility for deciding whether the means chosen to deal with a social problem are both necessary and appropriate.  Assessment of the advantages and disadvantages of the various legislative alternatives is primarily a 

matter for Parliament. The possible existence of alternative solutions does not in itself render the contested legislation unjustified: see the Rent Act case of Mellacher v Austria (1989) 12 EHRR 391, 411, para 53. The court will reach a different conclusion from the legislature only when it is apparent that the legislature has attached insufficient importance to a person’s Convention right. The readiness of a court to depart from the views of the legislature depends upon the circumstances, one of which is the subject matter of the legislation. The more the legislation concerns matters of broad social policy, the less ready will be a court to intervene”.   

51. The application of the   section 19 regime   to illegal immigrants   relates to issues of  immigration control and  the need to prevent sham marriages taking place and these matters must  properly be classified as  matters of broad social policy. Thus in accordance with Lord Nicholls’ statement, the courts should be “less ready” to intervene when considering  whether the Secretary of State was entitled to make the decisions contained in the first and second refusal letters.
52. The claimants and the JCWI both rely on my decision in the first judgment that the means in the section 19 regime were not necessary to accomplish the legislative objective but that decision was based on the position of those who were lawfully in this country. Different considerations of immigration control apply in respect of those, like the first claimant, who are illegal immigrants because, as I have explained, their position is very different as immigration control means that they are not entitled to be allowed to marry when they have no rights to be in the United Kingdom especially as marriage to an EEA national   would or might  give them rights to which they should only have been entitled if they were lawfully in this country. Illegal immigrants would also have great incentives to enter into sham marriages because of the great advantages which marriage to an EEA national would confer on them.
 53. If this were not so and illegal immigrants were entitled to marry and obtain rights of residence, then  in the words of Laws LJ in Mahmood (supra),which I have quoted in paragraph 36 above, this would   “disrupt and undermine firm immigration control because it would be manifestly unfair to other would-be entrants who are content to take their place in the entry clearance queue in their country of origin”.  In addition, there would be every incentive for  prospective immigrants to avoid the need to apply for and then wait for   permission to enter the United Kingdom because once they were here as illegal immigrants, they could marry  an EEA national and obtain a right of residence. In my view the approach of the Secretary of State to the application by the first   claimant as an illegal immigrant  for a COA to marry in a registry office was “necessary to accomplish that objective [of  firm immigration control]”.
      (iv)     Conclusions on the article 12 claim.
54.  I therefore conclude that the need for effective immigration control, which includes the reasons put forward by Miss Bennett and the need to prevent  queue-jumping  by illegal immigrants over other potential immigrants to this country  as described in Mahmood , leads to the conclusion that the article 12 rights of a person who was not here with permission would not be infringed if he was refused permission to marry and required to travel and marry abroad before applying for entry clearance. There is an exception to this approach where there are   compassionate circumstances but it is not suggested that they  exist in the case of the first claimant. 

  VII. The Article 14 claim
	(i) Introduction

55. It is contended by counsel for   the claimants and for the JCWI that the section 19 regime infringes the   rights of the first claimant under article 14 of the ECHR, which provides that:

“The enjoyment of the rights and freedom set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

56. In paragraphs 118 to 121 of the first judgment. I explained   that the traditional approach to considering an article 14 claim has been to apply the test formulated by Brooke LJ in Wandsworth London Borough Council v Michalak [2003] 1 WLR 613,625 but that this test had been further refined by the House of Lords in R (Carson) v Secretary of State for Work and Pensions [2005] 2 WLR 1369.

57. At the first hearing, Miss Carss-Frisk contended that the proper questions which should be asked in this case in respect of the article 14 claim are first whether the two comparators are in relevantly similar positions because if they are not, there is no question of discrimination but if they are, the second question is whether the distinction is justifiable. Mr Drabble, who appeared for the Intervener, preferred the single question set out by Lord Hoffmann in Carson (supra) [51] namely "is there enough of a relevant difference between x and y to justify different treatment?” I will apply each of these tests, which both give the same result.

58. In paragraphs 130 to 133 of the first judgment, I explained why very weighty reasons were required to justify discrimination on grounds of religion and nationality. In the first judgment, I found that in the case of immigrants lawfully in this country, the section 14 regime constituted discrimination on grounds of religion and of nationality and that this discrimination was not justified in the interests of immigration control. My task now is to consider if the position would be different for the first claimant, who is an illegal immigrant and  who intends to get married in a registry office.

(ii) Was there unjustified   discrimination on grounds of religion and nationality against the first claimant in     refusing his applications for a COA ? 

59. The case for the claimants is that they could get married without the need to apply for a COA   in the United Kingdom pursuant to the rites of the Church of England but they need a COA as they wish to marry   in   a registry office    and that requirement is discriminatory against them.  I am unable to accept that submission even in the light of the need for very weighty reasons to justify this form of discrimination as there is a very significant difference between the claimant and somebody, who wishes to marry pursuant to the rites of the Church of England; as I  explained  in the first judgment, there is no evidence of sham marriages taking place pursuant to Anglican religious rites as explained in paragraphs 80 and 81 of the first judgment  but in contrast there is a substantial and convincing body of  evidence of sham marriages taking 

place in registry offices as I  pointed out in paragraph 71 of the first judgment. In my view this difference constitutes very weighty reasons, which would and do   justify the difference in treatment. 

60. Second, the difference in treatment between, on the one hand,  the claimants and, on the other hand, those who did not have to apply for COAs or those who received COAs  is justified because of the requirements of  immigration control   in relation to illegal immigrants. I have already explained in paragraphs 36 to 40 above why these requirements mean that the Secretary of State was entitled to refuse the application of the first claimant for a COA.

     (iii) Conclusions on the Article 14 claim.

61. Whichever test is applied   to the first claimant’s article 14 claims, it must fail as there is enough of a relevant and justifiable difference between the first claimant, who wishes to marry in a registry office and another illegal immigrant who wishes to marry pursuant to Anglican rites to justify the difference in treatment between them. In addition, there is a justifiable difference between the first claimant as an illegal immigrant and somebody, who has the right to stay in this country for such a length of time that he will receive a COA. It follows that the Secretary of State was entitled in the first and second refusal letters   to refuse the first claimant’s applications for a COA without infringing his rights under the ECHR. 

VIII. The Effect of the First Claimant having been granted Temporary Admission 

      (i) Introduction 
62. It must not be forgotten first that the issue for me to determine is “whether the Secretary of State was entitled to refuse the application of the [first] claimant for a [COA] without infringing his rights under the [ECHR]” and second that the first claimant was not granted temporary admission until the Secretary of State had refused his applications for a COA in both the first and second refusal letters. Therefore the effect of the grant of temporary admission to the first claimant is not relevant to the issue before me but as I have heard some argument about it, I will summarise my views and I will start by explaining the statutory background to the grant of a temporary admission.

     (ii) The statutory regime relating to temporary admission 

63. The general provision for the regulation and control of immigration into the United Kingdom is section 3 of the Immigration Act 1971 (“the 1971 Act”), which lays down the principle that a person, who is not a British citizen requires leave to enter the United Kingdom. Schedule 2 to the 1971 Act contains  administrative provisions relating to the control of entry. Paragraph 2 of Schedule 2 provides for immigration officers to examine a person arriving in the United Kingdom. Paragraph 16 of Schedule 2 provides that a person who is liable to examination under paragraph 2 may be detained pending his examination and pending a decision to give or to refuse him leave to enter.

64. Paragraph 21(1) of Schedule 2 of the 1971 Act provides that:
“(1) A person liable to detention or detained under paragraph 16 above may, under the  written authority of an immigration officer, be temporarily admitted into the United Kingdom without being detained or be released from detention; but this shall not prejudice a later exercise of the power to detain him.”

65. This was the power under which the first claimant was granted temporary admission on 24 May 2005. Section 11 of the 1971 Act is relevant on the effects of temporary admission and it  provides, in so far as is material and with my emphasis added, that:
 	“Construction of references to entry, and other phrases relating to travel

A person arriving in the United Kingdom by ship or aircraft shall for  purposes of this Act be deemed not to  enter the United Kingdom unless and until he disembarks and on disembarkation at a port shall be further deemed not to enter the United Kingdom so long as he remains in such area(if any) at the port as may be  approved for this purpose by an immigration officer; and a person who has not otherwise entered the United Kingdom shall be deemed not to, do so as long as he is  detained or temporarily admitted or released while liable to detention, under the powers conferred by Schedule 2 to  this Act”.

(iii) The submissions.

66. Miss Carss- Frisk contends that the grant of temporary admission does not alter the first claimant’s status
as an illegal immigrant because temporary admission is not a positive immigration status. It is contended on behalf of the first claimant that once he was granted   temporary admission, then he was “at large” and in consequence entitled and able to obtain a COA because:

	(a). those who have been granted temporary admission   are deemed not to have entered the United Kingdom illegally: section 11(1) Immigration Act 1971;
	(b). once a person who is granted temporary admission, he is “at large” in the United Kingdom: paragraph 21(2) Schedule 2 Immigration Act 1971;
	(c). a person, who has temporary admission and is “at large”, is lawfully present in the United Kingdom;
	(d). the grant of temporary admission does not disqualify the person concerned from obtaining a COA because the person concerned is here pursuant to the express authorisation of an immigration officer under paragraph 21 of Schedule 2 Immigration Act 1971; and
 (e). Reliance for that proposition is placed on the comments in Szoma v Secretary of State for Works and Pensions [2005] 3 WLR  955 [24-28] of  Lord Brown of Eaton-under Heywood, who when  considering  the effect of section 11 of the Immigration 1971,  stated (with my emphasis added) that:

“25…In my opinion, however, section 11’s purpose is not to safeguard the person admitted from prosecution for unlawful entry but rather to exclude him from the rights (in particular the right to seek an extension of leave) given to those granted 

leave to enter…, it would in my judgment be quite wrong to carry the fiction beyond its originally intended purpose so as to deem a person in fact lawfully here not to be here at all…. 

27…Unless, submits [counsel for the Secretary of State], the applicant’s presence in the United Kingdom has been positively authorised by a specific grant of leave to enter, rather merely than by temporary admission, his disqualification from the benefits should not be found displaced.

28. I would reject this argument….” 
   
(iv)  Discussion

67.  The decision in Szoma concerned entitlement to benefits and it is common ground that the actual decision in that case is not relevant to the issues raised on this application. Lord Brown of Eaton-under Heywood’s statement set out in paragraph 66(e) above and in particular the words emphasised  makes it clear that a recipient of a grant of temporary admission does not enjoy the rights of somebody who has leave to enter. The grant of temporary admission would enable the recipient of the grant to receive some social security benefits but not the right   to remain. In fact the grant of temporary admission is a useful categorisation for those like the first claimant, who enter the United Kingdom illegally and who are pursuing a judicial review application for which they have received permission to proceed. Clearly people in this category require some classification to show that they have a right to be here, which is less than leave to enter and the temporary admission designation fulfils that function. If the submissions of the claimants were correct, it would mean that those with temporary admission would be regarded as having leave to enter and that would be inconsistent with the statement of Lord Brown, which I quoted in paragraph 66(e) above.

68. In the chronology set out in paragraph 7 above, I explained the circumstance in which the first claimant was granted temporary admission. It is significant that the papers which granted the first claimant   temporary admission were served on him “as an illegal immigrant”, which was the correct classification of him and he was informed of the reporting and residence restrictions imposed on him. He was also notified that he was liable to be detained. These points fortify my conclusion that the grant of temporary admission to the first claimant did not alter his status as an illegal immigrant.

69. Thus the first claimant by receiving temporary admission did not have the rights of someone, who had the right to enter. Indeed he remained an illegal immigrant as he falls within the definition of an illegal immigrant in section 33(1) of the Immigration Act 1971 which provides that: 

	“…’illegal immigrant’ means a person (a) unlawfully entering or seeking to enter in breach of a deportation order or of the immigration laws, or (b) entering or seeking to enter by means which include deception by another person, and includes also a person who has entered as mentioned in paragraph (a) or (b) above” 

70. Thus the grant of temporary admission to the first claimant does not confer on him any rights to remain in the United Kingdom and he continued to be an illegal immigrant. The granting of temporary admission to an illegal immigrant does not mean that that he or she then becomes a legal immigrant because as Lord Brown explained in a speech from which I have already quoted (with my emphasis added) that, “section 11’s purpose is …to exclude him from the rights (in particular the right to seek an extension of leave) given to those granted leave to enter". In those circumstances, when the first claimant, as an illegal immigrant, was granted temporary admission, he would have   been in the same position in respect of his right to marry and 

his convention rights as before he was granted temporary admission. 

     IX. General Comments.

71. The position that emerges is that, as I explained in the first judgment, the section 19 regime is
incompatible with the ECHR particularly (but not exclusively) because there is no reason or evidence put forward to explain why those wishing to marry in various non-Anglican religious marriages (whether in a Catholic, Hindu, non-conformist or any other non-Anglican ceremony) require COAs while those marrying pursuant to Anglican rites do not. Furthermore, as it appears that the Secretary of State did not consider whether non-Anglican religious ceremonies were being used for sham marriages, an additional reason why the section 19 regime is incompatible with the ECHR is because the Secretary of State   is not entitled to deference for his views as a claim to deference is dependent on the person to whom deference is due using his knowledge or status consciously considering an issue and then reaching a conclusion on it. In any event, those covered by the section 19 regime have to pay £135 with their application for a COA and if the period of their right to remain is not for a long enough period, their application for a COA is automatically refused in the absence of compassionate circumstances.

72.  It is important to stress the very far-reaching adverse consequences for a person who requires a COA but does not receive it especially those who are caught by the provision for automatic refusal. The expectation for this   group of people is that either the couple should travel abroad and marry, and then for the partner requiring entry clearance to obtain this from abroad on the basis of his or her marriage; or for the individual requiring entry clearance to travel abroad (with or without his or her fiancée) to obtain entry clearance, from abroad, on the basis of his intended marriage in the UK.  The compassionate circumstances may be seen to be applicable where neither expectation is reasonable. Those of us who sit in the Administrative Court for long periods are now very familiar with the delays in the immigration system which are now likely to lead to very substantial delays in handling and resolving applications  to enter the United Kingdom from  those who have gone abroad to marry. Of course, those who wish to marry in an Anglican religious ceremony do not need to apply for a COA to marry or to go abroad to marry while they continue to be  statutorily exempt from the section 19 regime.

73. The section 19 regime is  incompatible with articles 12 and 14  of the ECHR for a number of reasons set out respectively  in paragraphs 78-89  and 137- 150 of the first judgment. 

74. The position in respect of   illegal immigrants is very different because there are different and very strong objectives concerned with immigration control which mean that it is proportionate not to grant them COAs. In other words, when an illegal immigrant’s convention rights to marry are under consideration, they have to be considered  in the light of special  factors   (such as those set out in paragraphs 28, 29 and 33 to 38 above) which are not  relevant in the case of a person subject to immigration control who is lawfully in the United Kingdom.    Furthermore, the first claimant intends to marry in a registry office and there is clear evidence as I explained in paragraphs 71 and 72 of the first judgment that they have been used repeatedly for sham marriages. This means that many of the objections to the section 19 regime do not apply to those who intend to marry   in registry offices.

75. I am grateful for the helpful and thoughtful submissions   that I have received from all counsel and their solicitors. I must now mention two important lessons which should be learnt from the present litigation and which are   not meant to be a specific criticism of any of any of the legal teams. First it was unfortunate   that 

all matters in dispute were not set out in the list of issues which I was asked to determine in the first judgment. The long list of 22 issues and many sub-issues, which I was asked to resolve for the purpose of the first judgment, surprisingly did not deal with the position of illegal immigrants even though it has always been the case for the Secretary of State that the first claimant was an illegal immigrant and the position of illegal immigrants was mentioned during submissions. In future, it is imperative that if and when a list of issues for determination by a judge is being compiled, counsel should ensure that all the necessary issues are covered without the need for further submissions and a further judgment.

76. Second, issues as important as the ones covered in the present judgment should be the subject of oral submissions. After distributing   the second judgment, I agreed to resolve the issues covered by this judgment but I was then told that it would not then be   possible for there to be an oral hearing because of 
counsel’s other commitments before the time when my decision was required. So it came about that I was required to give the present judgment without an oral hearing. Although I received   helpful written submissions, I was deprived of the great benefits of an oral hearing and this made my task substantially  harder than it would have been if there had been an oral hearing. I hope in future that this case will not be regarded as a precedent for obtaining judgments without oral hearings.

     X. Conclusions.

77. For the reasons, which I have sought to set out, I conclude that the Secretary of State was entitled to refuse the application of the first claimant for a COA without infringing his rights under the ECHR. This conclusion also provides an additional reason for my decision in the second judgment to refuse to award damages to the present claimants.