Held, appeal dismissed. (1) The judge did not conflate the tests for the purposes of articles 8, 12 and 14 in the sense of having been influenced by the approach in relation to articles 8 and 14 to an impermissible extent, nor did he apply a composite and single test of justification to all of the Convention rights including article 12. Rather, the judge was fully aware that article 12 could not be qualified on grounds simply because they could be relied upon under article 8, that article 12 was subject only to national laws governing its exercise, and that those national laws could not by rules of substance or procedure “impair the essence of the right to marry”, “injure or impair the substance of the right”, “deprive a person or category of person a full legal capacity of the right to marry” or “substantially interfere with the exercise of that right”, and although those national laws could have a permissible objective, any limitations introduced could not restrict or reduce the right in such a way or to such an extent that the very essence of the right was impaired. Having distilled the principles which applied to article 12, the judge remained clear throughout that they were different from those which applied to articles 8 and 14 and he applied those same principles when analysing the relevant test and reaching his conclusions that regulation C9 did not lack objective justification by reference to any of the Convention rights invoked and was objectively justified and proportionate as to any article 8 or article 12 interference (paras 60–67, 83, 84).

(2) The judge had not to use the approach of evaluating whether the “essence” of article 12 had been damaged and had not erroneously applied a broader test of proportionality. In respect of the judge’s formulation that for the purposes of article 12 it might be sufficient to ask a “composite question” in which “disproportionality, arbitrariness and injustice were part and parcel of the idea of whether the exercise of the right to marry had its ‘essence’ or ‘substance’ ‘impaired’ or ‘injured’ by or was ‘substantially interfered with’ or ‘unreasonably inhibited’ by the impugned national law or administrative action”, that phrasing of the task to be undertaken did not add anything to the jurisprudence in relation to article 12 which was distilled by the judge. Article 12 was a strong right which did not contain the kind of proviso which applied, for example, to article 8. Accordingly, when considering article 12, the court should not apply tests of “necessity” or “pressing social need”. It nevertheless had to determine whether, regard being had to the State’s margin of appreciation, the alleged interference with article 12 was arbitrary or disproportionate. As established by the authorities, any restrictions under national law had to have been imposed for a legitimate purpose and could not go beyond a reasonable limit to attain that purpose. They could not restrict or reduce the right to such an extent that the very essence of the right was impaired. The judge took that correct approach, by taking into account the fact that article 12 contained a strong right, considering regulation C9 in context, exercising an evaluative judgment in order to determine whether the “essence” of the right had been “impaired”, “injured” or “substantially interfered with” and determining whether regulation C9 was proportionate to achieve a legitimate objective. The judge was right to find that the cessation of the benefit was not a penalty or levy on marriage, but rather was inherent in the nature of the pension benefit itself. It was always defeasible. The judge had not taken irrelevant factors into account, fail to ask the right question or fail to address himself to the relevant issues when determining that question. The necessary evaluative judgment was a matter for the judge. The cumulative effect of the factors which might be taken into account was such that even if a heightened level of justification was required for the purposes of article 12, it would be met. Regulation C9 was not a measure which was targeted at marriage per se. It applied more broadly to cohabitation. It was no purpose of regulation C9 to discourage people from marrying. Accordingly, there was no basis for concluding that the judge applied an incorrect test in relation to article 12 or that his approach to the necessary evaluative judgment was flawed (paras 68–71 ,73-82, 83, 84).