CCPR/C/58/Add.6 page 12
(b) The "primary purpose" test, previously applicable only to husbands and male fiancés seeking entry, was at the same time extended to wives and female fiancées. The applicant has to satisfy the entry clearance officer that the marriage was not entered into primarily for immigration purposes. The objective of the marriage test is to protect the domestic labour market by preventing marriage being used to gain admission by those who would not otherwise have qualified to enter. The legitimacy of that objective was specifically endorsed by the court in the Abdulaziz judgement;
(c) The maintenance and accommodation tests, previously applicable mainly to wives and female fiancées seeking admission, were on the same occasion extended fully to husbands and male fiancés. Under these tests, the applicant must show that he/she can be maintained and accommodated without falling a burden on public funds;
(d) The Immigration Act 1988 has repealed section 1 (5) of the Immigration Act 1971. Section 1 (5) stated that "the Rules shall be so framed that Commonwealth citizens settled in the United Kingdom at the coming into force of this Act and their wives and children are not any less free to come into and go from the United Kingdom than if this Act had not been passed". (The Act came into force on 1 January 1973.) The purpose of this provision was to protect the position of Commonwealth citizens who were already settled in the United Kingdom when the 1971 Act came into force. It is acknowledged that the reference to wives was discriminatory. It meant that the wives of such Commonwealth citizens but not their husbands were exempt from the normal marriage tests (see above). An alternative way of removing the discrimination would have been to extend the exemption to husbands. The view was taken, however, that the time had come for all spouses equally to have to meet the requirements of the normal marriage rules. The drafting of section 1 (5) had not made it clear whether it was intended to cover only those wives and children already settled on 1 January 1973, or to extend the rule to the future wives and children of Commonwealth men settled in the United Kingdom on that date, some of whom were children at the time. The latter more generous interpretation was followed by the Government in the years following the 1971 Act. This interpretation, combined witth the passage of 15 years, was felt, by 1988, to have honoured the spirit of section 1 (5). The Government considered that the time was now ripe to provide fair and equal treatment as between all persons settled in the United Kingdom who wished to bring their family into the country, and the 1988 Act was enacted accordingly;
(e) A further amendment to the Immigration Rules in July 1989 has extended to women of foreign nationality working in the United Kingdom the right, already available to their male counterparts, to be joined by their spouse and children (subject to satisfying certain requirements).
56. A small number of discriminatory provisions remain. Some discriminate in favour of men and others in favour of women. In each case the justification for the provision is that removing the discrimination would either unduly weaken the immigration control or needlessly penalize those who currently benefit. The discriminatory provisions are as follows:
(a) Male students from abroad, but not female students, can be joined by their spouse and children;