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Supreme Court rejects challenge to 'speak English' immigration requirement

Published 18/11/2015

The Supreme Court will rule on the issue
The Supreme Court will rule on the issue

The Supreme Court has rejected a challenge against an immigration rule requiring people to be able to speak English before coming to the UK to live with their spouse.

Five justices in London were urged to rule that the pre-entry measure is "unreasonable, disproportionate and discriminatory".

Today, the panel of judges, headed by the court's president Lord Neuberger, unanimously dismissed an appeal by two wives who are British citizens.

Their husbands, who cannot speak English, are foreign nationals and wish to join them in the UK.

Mrs Saiqa Bibi and Mrs Saffana Ali both claimed the requirement breaches their right to a private and family life under article 8 of the European Convention on Human Rights (ECHR).

It is said in both cases that it would not be feasible for their husbands to pass a test before coming to the UK.

But the Supreme Court has decided that the rule does not infringe article 8.

Although the Supreme Court rejected the challenge against the rule itself, the judges have asked for further submissions from the parties on "whether a declaration should be made that the operation of the guidance in its present form is incompatible with article 8 rights where compliance with the requirement is impracticable".

The Supreme Court judgment follows earlier rulings in the High Court and Court of Appeal that there was no disproportionate interference with family life.

The justices declared today that the "rule itself is not disproportionate".

But Lady Hale, deputy president, suggested that the appropriate solution to avoid infringements in individual cases would be to "recast" the guidance to grant exemptions in cases where compliance with the requirement is impracticable.

One remedy might be for the court to declare that the present application of the guidance is incompatible with the rights of individuals in such circumstances.

Lord Neuberger agreed that the guidance "seems bound to result in the infringement of article 8 rights in individual cases", but said the rule itself was not disproportionate.

Since late 2010 the spouse or civil partner of a British citizen or person settled in Britain has been required to pass an English language test before coming to this country.

Before the amendment to the immigration rules, they were only required to demonstrate such knowledge two years after entering the UK.

In December 2011 a High Court judge in Birmingham dismissed judicial review cases brought by three couples. Mr Justice Beatson then ruled that the requirement did not interfere with their right to marriage, and was legitimate in its aim of protecting public services and promoting integration.

Two of the cases were then taken on to the Court of Appeal, but appeal judges ruled against the two wives in April 2013.

At a hearing earlier this year, Manjit Singh Gill QC, representing Mrs Bibi, told the justices that the right to "married life by living together" was being restricted for the first time in British history by "executive action".

In written submissions to the justices, James Eadie QC, for the Home Secretary, asked the court to dismiss the appeals. He said the case concerned the provisions of the immigration rules requiring applicants for "spouse visas" to demonstrate that they have achieved a certain level of competence in the English language, subject to certain exceptions.

The visa entitles the spouse to enter the UK for a limited probationary period. After that period is over, the spouse can then apply for indefinite leave to remain if the requirements of the immigration rules are satisfied.

Where an applicant for a spouse visa does not satisfy the pre-entry language requirement, the entry clearance officer "will automatically consider the issue of whether there may be exceptional circumstances" which warrant the grant of entry clearance outside the immigration rules on grounds of Article 8 "because refusal would result in unjustifiably harsh consequences for the applicant or their family".

Mr Eadie said that, if an application was refused, the applicant can appeal against that refusal on Article 8 grounds.

He argued that the pre-entry language requirement "does not violate" Article 8.

Mr Ali, a national of Yemen who lives in that country, has been described as having no formal education. It is said there is no approved test centre in Yemen which provides tuition in English to the required level.

Mr Bibi is a resident of Pakistan and it is said that the nearest approved test centres are 71 miles (115km) and 88 miles (141km) away. Both men would have to learn computer skills.

Rosie Brighouse, legal officer for human rights campaigners Liberty, said: "This is a careful, nuanced judgment from the UK Supreme Court.

"While we are disappointed the court does not agree with us on the rule's discriminatory effect, we welcome its recognition that the Home Secretary's harsh and unreasonable guidance puts many couples in an impossible situation, and may well be unlawful.

"The court has not yet had its final say - and we know many families will wait anxiously for its ultimate decision."

The justices expressed concern over the guidance given to entry clearance staff on how the rule should be operated.

Lord Neuberger, who described the topic as "important and sensitive", said he had "concerns" about the guidance, adding: "It does appear virtually certain that there will be a significant number of cases where application of the guidance will lead to infringement of Article 8 rights."

Lord Hodge said the guidance, "because of the narrowness of the exceptional circumstances for which it allows, may result in a significant number of cases in which people's Article 8 rights will be breached".

He added: "To avoid that unfortunate outcome, the Government may need to take further steps toward providing opportunities for spouses and partners to meet the requirement,or may need to amend its guidance.

"In my view, in order to ensure a fair balance, the Government should consider amending the guidance to allow officials to consider whether it is reasonably practicable for the incoming spouse to obtain the needed tuition and sit the test without incurring inordinate costs."

Lady Hale said the operation of the rule, in the light of the present guidance, is "likely to be incompatible with the convention rights of a significant number of sponsors".

She said: "It is important to appreciate that, although the context of this case is immigration, the Government has never suggested that the aim of the rule is to limit immigration by spouses and other partners of people settled here.

"It does not operate, and is not intended to operate, as a cap on the number of partners admitted."

The aim of the rule - to assist a partner's integration into British society at an early stage - was "undoubtedly an important aim", and it was "not difficult to see the benefits to integration of even a basic level of English language skills".

But people living in remote rural areas may experience serious difficulties in gaining access to suitable tuition "which may only be obtainable at unreasonable cost".

Getting to a test centre would be "impossible or prohibitively expensive" for some.

Lady Hale said: "The interference with the Article 8 rights of the British partners of the people who face these obstacles is substantial. They are faced with indefinite separation, either from their chosen partner in life, or from their own country, their family, friends and employment here."

She added: "The problem lies not so much in the rule itself, but in the present guidance, which offers little hope, either through the 'exceptional circumstances' exception to the English language requirement, or through the even fainter possibility of entry clearance outside the rules.

"Only a tiny number achieve leave to enter through these routes. This is not surprising given the way in which the guidance is drafted.

"The impracticability of acquiring the necessary tuition and practice, or of accessing a test centre, is not enough. Financial impediments are not enough. Furthermore, all applications for an exception to be made will be considered on a case-by-case basis.

"This means that the considerable expense of making an application has to be risked, even though, on the current guidance, the chances of success are remote."

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