The Sledgehammer & the Nut: using age limits to fight forced marriages

Written by Thomas Huddleston, MIPEX Research Coordinator, Co-author and Policy Analyst, Migration Policy Group

Amber and Diego Aguilar, with the support of a British NGO, may have overturned the UK’s 21-year-age-limit for the reunification of non-EU citizens with their British or non-EU sponsor. The court found that age limits have a legitimate aim — fighting forced marriages — but disproportionate effects on other genuine couples. The very few other European countries that recently introduced these measures also face questions about how effective they really are against forced marriages.

“I would acknowledge that the [family reunion age limit] is rationally connected to the objective of deterring forced marriages. But the number of forced marriages which it deters is highly debatable. What seems clear is that the number of unforced marriages which it obstructs from their intended development for up to three years vastly exceeds the number of forced marriages which it deters. On any view it is a sledgehammer but [Home Secretary Theresa May] has not attempted to identify the size of the nut.”

That was Lord Wilson of the United Kingdom’s Supreme Court, as part of its 12 October 2011 Judgement on Quila v. SSHD. In this case, the sledgehammer was the UK’s 21-year-age-limit for the family reunion of non-EU citizens. The nut, the Aguilar couple, were one of many genuine couples who were kept apart by this rule ostensibly designed to prevent an unknown number of forced marriages through family reunion.

The MIPEX III UK Country Profile had concluded that the July 2008 age limit made the family reunion procedure slightly less favourable for the integration of non-EU families. Though the measure was introduced with the objective to fight forced marriages, it also affects all genuine couples including a non-EU national aged 18 to 20.

This case’s couple–UK citizen Amber Aguilar and Chilean citizen Diego Aguilar–is one example. Amber and Diego Aguilar could not live together in the UK under the 21-year-age-limit, which forced them to move first to Chile and later to Ireland. Click here or on the above image for an interview with the couple after the UK Supreme Court ruling. The Court found that the age limit was unjustified and disproportionate since it unlawfully interfered with their right to private and family life under Article 8 of the European Convention on Human Rights. How this case affects the 21-year-rule is uncertain at this time.

The couple was represented by Joint Council for the Welfare of Immigrants (JCWI). For more on their case, read their blog entry. You can also meet the couple at JCWI’s 26 October London seminar on “better family migration — but for whom exactly?”

In response, immigration minister Damien Green referred to marriage visa rules and positive high court judgments in other European countries like Denmark and The Netherlands. He also claimed that age limits would be effective for their aim of preventing forced marriage:

“This is another very disappointing judgment, which overturns a policy that exists and is judged to be consistent with the ECHR in other European countries…The judges themselves agreed increasing the marriage visa age had a legitimate aim. We believe this decision will put vulnerable people at risk of being forced into marriage.”

What other European countries?

On the minister’s first point, very few other European countries impose a disproportionate age limit. In fact, equal treatment remains the international standard for couples in the family reunion procedure, with Australia, Canada, the US, and most European countries treating all people over 18 like adults, who have the right to marry. These countries are highlighted below in pink (Netherlands should be black due to July 2010 change):

The BBC Article on the judgement made the error that a 21-year-age-limit was ‘recommended’ ‘EU-wide’ by ‘Brussels’. The EU Family Reunion Directive 2003/86/EC requires that Member States authorise the entry and residence of a sponsor’s spouse. However, Member States have the discretion to set an age limit “at maximum 21 years” and, in those cases, only if they ensure better integration and prevent forced marriages. When in 2008 the European Commission reviewed how Member States had transposed the Directive, it concluded that ‘some’ Member States have been applying requirements like age limit in “a too broad or excessive way.”


Effective against forced marriages?

On the minister’s second point, the few countries with an unequal age limit have also faced questions about how effective they really are against forced marriages. Research in Denmark found no evidence that the 24-year-age-limit–the highest in Europe–had any impact on forced marriage. Instead, another Danish study concluded that since 2002 the policy partly contributed to a rapid and serious decline in the total number of marriages among adult ethnic minority women who were under that 24-year-limit.

Research in the United Kingdom has raises doubts about the impact of age limits on forced marriages. UK government-commissioned research found no evidence that the previous policy raising the family reunion age from 16 to 18 affected the incidence of forced marriage according to large scale national databases. The study’s focus groups groups of victims of forced marriage did not think that raising to 21 or 24 would prevent forced marriage. The few benefits–like maturity, access to education, financial independence–were outweighed by many more costs–like risk of greater physical or psychological harm, risk of being taken abroad, entering UK with false documentation, barriers to access potential support like child protection legislation and school-based counseling, mental health problems like attempted suicide and self-harm, dual system of marriage with indirectly discriminatory impact on certain ethnic groups.

Citing this research, a 2011 government-commissioned paper on marriage migration warned of the unintended consequences. Age limits may undermine the fight against forced marriage in extreme cases. Danish and British embassies have reported several cases of citizens or residents being forcibly taken abroad. They are married and live in their or parents’ country of origin, often invisible to diplomatic protection, until such time as they or their spouse meet the age limit and other requirements. These requirements may thus have the effect of moving forced marriages abroad, where victims have difficulty accessing services.

During the government’s consultation on the 2008 age limit, respondents largely agreed that the aim to fight forced marriage was legitimate, but opinion was split on using age limits. Several academics and NGOs observed that the number of forced marriages is unknown and data on the age limits’ effectiveness is limited and disputed. The Home Affairs Committee called for better evidence about the effects of raising the age.