Forced Marriage (January 2012)

Lynne Townley and Samir Pasha consider the impact of recent legislative and policy initiatives aimed at discouraging the practice of forced marriage

Forced marriage is defined as “a marriage without the consent of one or both parties and where duress is a factor”. Under domestic legislation, a marriage entered into without the valid consent of either party can be rendered void. Forcing a person into marriage also incurs a violation of the provisions of numerous international instruments.


The most commonly identified motives of those forcing marriage include: ensuring that land and property remain within the family; assisting claims for UK residence and citizenship; controlling unwanted sexuality or behaviour; preventing unsuitable relationships (eg outside the ethnic, cultural, religious or caste group); and protection of family “honour” (“izzat”).  

 

The Forced Marriage Unit and the Forced Marriage (Civil Protection) Act 2007


The high level of public concern over the increase in forced marriage cases in recent years prompted the Government to set up the Forced Marriage Unit (FMU), which assists victims and potential victims of forced marriage both nationally and internationally. The Government also enacted the Forced Marriage (Civil Protection) Act 2007, which enables courts to prevent forced marriages and provide recourse for those already in a forced marriage by way of a civil injunction known as a Forced Marriage Protection Order (FMPO). In 2010, while the FMU received 1,735 calls for assistance, only 116 direct applications for FMPOs were made. Academic studies indicate that both statistics represent an underestimation of the extent of the problem in the UK - but they also show that while victims may be prepared to call a helpline to discuss their problems, they are much less likely to seek recourse via the courts.

 

 

 

Rule 277 of the Immigration Rules


In 2008, in a further attempt to deter forced marriage, the Government amended rule 277 of the Immigration Rules 2004 so as to provide that a marriage visa should not, in the absence of exceptional, compassionate circumstances, be granted until both the sponsor and the applicant had attained the age of 21 (the specified minimum age hitherto had been 18). The Home Secretary argued that this provided an opportunity for individuals to develop maturity and life skills which might enable them to resist the pressure of being forced into marriage and/or sponsoring a visa. In October, the Supreme Court held that the amendment amounted to a “colossal interference” with the right to family life as guaranteed by art 8 of the ECHR (R (on the application of Quila and another) v Secretary of State for the Home Department; R (on the application of Bibi and another) v Same [2011] UKSC 45; [2011] 3 WLR 836). The majority of the court considered that the Government had failed to provide sufficient evidence that the age increase was a substantial deterrent to forced marriage. This was perhaps not surprising given that a report commissioned by the Home Secretary had warned that any such amendment would be “discriminatory on racial and ethnic grounds and with regards to arranged and love marriages” and the Home Affairs Select Committee had recommended that the amendment be delayed until further research could be undertaken. The Government has indicated that it will respond by re-writing the Immigration Rules to take account of ECHR obligations.

 

 

 

 

 

 

Criminalisation of Forced Marriage


Following the judgment in Quila, the Government announced that it intends to consult again on whether the creation of a specific criminal offence of forcing someone to marry would deter the practice (having previously rejected criminalisation after public consultation in 2005). Those campaigning against criminalisation have argued that the risk of close family members being prosecuted (and facing the stigma of obtaining a criminal record) would deter victims from seeking help and thus drive the problem further underground. While it is impossible to quantify what difference criminalisation would make in practice, it is of note that criminalisation in other jurisdictions has neither deterred the practice nor increased the reporting of it. Moreover, there has been a distinct lack of success in securing convictions under the Female Genital Mutilation Act 2003 - to which similar considerations about the reluctance of victims to expose close family members to criminal sanctions would apply.

Furthermore, on 29 November, The Forced Marriage etc (Protection and Jurisdiction) (Scotland) Act 2011 came into force in Scotland. Under this statute, breach of an FMPO is now a criminal offence punishable with up to two years’ imprisonment. This marks a “U-turn” for the Scottish Parliament because it was initially reluctant, to criminalise forced marriage. The Parliament stated that its decision was taken to send out a clear message that the practice would not be tolerated, although research as mentioned above has shown this to be counterintuitive in practical terms. The Coalition Government, no doubt, will keep a watchful eye on this legal sanction, as it unfolds in Scotland, as it carries out its own consultation.

 

 

 

 

 

 

The way forward


The Government response is awaited to a public consultation on behalf of the United Kingdom Border Agency on new proposals for family migration. These include a proposed ban on spousal sponsorship if a proposed sponsor has breached or been named as a respondent of a FMPO. Due to the small number of FMPOs in existence the impact of this is likely to be minimal in practice (with only five breaches on record up to December 2010). In any event, the recent Supreme Court judgment in Quila has sent a clear message to the Government that any future measures to combat forced marriage must not only be ECHR compliant, but be underpinned by sufficient and demonstrably credible research.

Any views expressed in this article are entirely the co-authors’ own.

Lynne Townley barrister and Crown Advocate and Samir Pasha barrister

 

 

 

 

 

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