By Toby Helm and Joshua Rozenberg
Government efforts to stop foreigners entering into "bogus marriages" to bypass immigration controls were thrown into chaos when a judge ruled that they breached human rights.
The decision forced ministers to suspend rules that mean people born outside the European Union who are subject to immigration controls must seek permission from the Home Office for a wedding in Britain, unless they marry according to the rites of the Church of England.
Giving judgment yesterday, Mr Justice Silber said that restrictions on the right to marry would be lawful only if they were "rationally connected" to the aim of preventing sham marriages and went no further than necessary.
The restrictions were not rationally connected, he concluded, because they prevented weddings in non-Anglican religious ceremonies - although the Home Secretary had not proved or even asserted that these ceremonies were being used for bogus weddings.
Anglican ceremonies are exempt from the rules, introduced last February, because the Church of England's requirement to give notice by publishing banns is said to provide sufficient safeguard against bogus marriages.
An application for a certificate of approval to marry costs Â£135 and only 76 specially selected register offices can deal with them. If the Home Secretary refuses permission, there is no right of appeal - other than to the High Court.
Many of the factors relied on by Charles Clarke for exempting Anglican marriages might apply to other Christian services, whether Catholic, Methodist, Presbyterian or Baptist, the judge explained. They might also apply to weddings in mosques, temples and synagogues.
Weddings in places of worship were normally booked months in advance, Mr Justice Silber said, and the person conducting the ceremony might well ask to see the couple several times in order to be satisfied of their intentions towards each other.
It was not clear why those using an Anglican Church ceremony would be less likely to engage in a sham marriage than those using, for example, Presbyterian, Catholic, Jewish or Muslim ceremonies.
The judge said the rules were incompatible with the human rights law because they amounted to unjustified discrimination on grounds of religion and nationality.
One of the three test cases before the court involved Mahmoud Baiai, an Algerian, and Izabella Trzcinska, from Poland, who was living legally in Britain since she was an EU citizen. The judge was told that Mr Baiai arrived in Britain illegally in February 2002 and had remained in the country without regularising his immigration status. His intended bride arrived in July 2004 to work following Poland's accession to the EU.
Mr Baiai applied to the Home Office for permission to marry but was refused because of his status in February last year.
Lawyers for the couple argued that the fact that Miss Trzcinska's fiancÃ© was unlawfully in the country was not a bar to marriage under the Marriage Act 1949 as the right to marry was not dependent on the right to reside.
Other couples involved in the case were granted permission to marry but are now seeking damages for having suffered discrimination.
In one case, a child was born out of wedlock because a marriage was delayed by the Home Office rules.
The Home Office said it was "disappointed" by the ruling, particularly because reports of suspicious marriages had dropped from 3,740 a year in the 12 months before the new rules came into effect in 2005 to fewer than 300 last year. It said it was considering an appeal.
Amit Sachdev, a solicitor, said after the judgment: "This once again shows the Government's abject failure to respect the human rights of immigrants.
"This Act which brought in these rules was a knee-jerk reaction based on speculation rather than evidence.
"The House of Lords complained that the Act had not received proper parliamentary scrutiny. By this judgment, their concerns have proved correct."
Damian Green, the Tory immigration spokesman, said: "We would endorse any mechanism to crack down on sham marriages, but yet again the Government has been caught out by unintended consequences of legislation."
A Home Office spokesman said: "This will require amended guidance. Therefore consideration of applications for certificates of approval which would usually fall for refusal will be suspended until further notice." The spokesman added that the Government was "determined to protect the immigration system and marriage laws from abuse".
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