protecting the right to marry.
Judge Silber in the High Court had tested the scheme against the criteria outlined by Lord Steyn in Daly’s case, which are set out above. He found that the objective of the legislation in question was legitimate and was sufficiently important to justify limiting a fundamental right (the right to marry). However, he then found that the particular measure taken was not rationally connected to this objective because it affects all marriages of persons subject to immigration control, not just those known or reasonably suspected to be marriages of convenience. He also held that in casting its net so wide, the measure was disproportionate to the legitimate aim sought to be achieved.
The Court of Appeal upheld the High Court decision, saying:
“ 58. In the light of the Convention jurisprudence, the Secretary of State can only interfere with the exercise of Article 12 rights in cases that involve, or very likely involve, sham marriages entered into with the object of improving the immigration status of one of the parties. To be proportionate, a scheme to achieve that end must either properly investigate individual cases, or at least show that it has come close to isolating cases that very likely fall into the target category. It must also show that the marriages targeted do indeed make substantial inroads into the enforcement of immigration control … the scheme in issue in this case does not pass that test.”
The Baiai case has some relevance here because the Immigration, Residence and Protection Bill introduced in the Oireachtas in 2006 contained a very similar provision requiring asylum seekers and persons seeking leave to remain here to obtain the permission of the Minister for Justice, Equality and Law Reform before getting married. The Bill lapsed with the dissolution of the Dail before the General Election this year but is due to be reintroduced shortly. It is not yet known whether it will still contain the controversial provision about requiring permission to marry.
If such a provision were to become law here, it would be liable to challenge on constitutional as well as Convention grounds, but the way in which the issue was dealt with in the UK illustrates the process of proportionate review under legislation very similar to the ECHR Act, 2003 here.
A rather stark statement of the post Human Rights Act criteria for Judicial Review was made last year by Lord Bingham in the House of Lords in his judgment in the case of R (Begum) v. Denbigh High School,19which concerned a Moslem schoolgirl who was refused permission to wear a jilbab, a large shapeless garment a bit like what some orders of nuns used to wear here.
The applicant had challenged the decision both on the grounds that it had infringed her rights under the Convention and also that the school had not properly followed the procedures for making such decisions. Lord Bingham said:
19 R (Begum) v. Denbigh High School  UKHL 15