This was a challenge in the High Court before Mr Justice Beaston to the legality of amended paragraph 281 of the Immigration Rules which came into effect on 29.11.11.
As amended, paragraph 281 requires spouses and partners of British citizens/persons settled/being admitted for settlement in the UK, to demonstrate sufficient knowledge of English language (at A1 standard of the Common European Framework). Applicants are required to do this through providing formal documentation in the form of language test certificates from approved providers that verify their speaking and linguistic capacities at the requisite level.
It is already a requirement of the Rules that immigrant spouses and partners demonstrate they have sufficient knowledge of life and language in the UK when they come to apply for settlement (after 2 years). The Rule change therefore introduced an additional test prior to entry to the UK. The above requirement had also been extended to fiancés and proposed civil partners of British/settled individuals, and to those seeking to vary or extend their leave as spouses.
The scheme established exceptions for those: (i) aged 65 and over, (ii) with a physical or mental condition that would prevent them from meeting the requirement, (iii) who could show ‘exceptional or compassionate circumstances’, (iv) nationals of specified countries, (v) with academic qualifications deemed by UK NARIC to meet the recognised standard of a bachelors/Masters/PhD that also fulfilled certain other criteria and (v) coming from countries in which there is no test centre (it is worth noting that the exceptions are, in practice applied very restrictively – the judgment gives the example of a woman with a gun shot wound being exempt from the test to show how this operates)
The individual cases
In the case of Mr and Mrs Chapti, her husband made an application for entry clearance in respect of himself and his 19 year of son in 2009. That application was refused on grounds that Mr Chapti could not be adequately financially maintained – this is a requirement of the Rules.
The above decision was appealed, but was unsuccessful on grounds that the marriage was not legally valid at the time, and on grounds of non-satisfaction of the maintenance requirements. An application for permission to appeal was granted – that appeal is yet to be heard. However, judicial review proceedings were brought on the basis that Mr Chapti would ultimately be unable to fulfil the requirement because of the difficulties of learning English in his village in rural Gujurat. It was argued that it would be pointless to spend £810.00 (visa fees) in applying for entry clearance in the light of this.
In the case of Ali, there was no UKBA approved test centre in Yemen, the applicant was also illiterate, and would need lessons in computer literacy in order to take the test. In the case of Bibi’s husband in Pakistan, he spoke no English and had no computer skills, and would therefore have to relocate to another part of Pakistan for 6 months in order to take lessons as he would otherwise need to undertake a daily 4 hour journey to get to and from classes.
In dismissing all three applications for judicial review Mr Justice Beaston held:
1. There is no interference with Article 12 ECHR (right to marry and found a family) read together with Article 8 ECHR (respect for private and family life) or/and common law. Article 12 did not confer a right to marry in the UK where one party to the proposed marriage is abroad and has no right to enter. The Rule did not prevent marriage from taking place in the UK where both parties are in the jurisdiction, nor did it prevent anyone from travelling abroad to get married;
2. Whilst Article 8 ECHR is engaged by these cases – the Court accepted JCWI’s submission based on A (Afghanistan) that family life is always engaged where there is a lawful, genuine and subsisting marriage, the operation of the Rule is not a disproportionate interference with family life, and is both justified and rationally connected to the legitimate aims of promoting integration and protecting public services both of which were accepted as falling within Article 8(2). Specifically Mr Justice Beaston relies on the following:
a) whilst statistics show that there are very few spouses who fail the knowledge of life and language in the UK test, and that number is falling, there has been an increase in those sitting the (less demanding) ESOL route for settlement purposes. It was therefore justifiable for SSHD to consider there was a problem, and in so doing, treat spouses with limited leave as a target group
b) whilst there are advantages of learning English in the UK, SSHD was entitled, in the light of the increase in spouses taking the ESOL route, to conclude that the advantages of post entry learning did not outweigh the advantages of having some limited knowledge of language before arrival;
c) there was some evidence showing that pre-entry acquisition of language would serve as a stepping stone for labour market participation, and other participation in society;
d) there would be savings for public and health authorities. He noted that whilst these were not susceptible to précise quantification, ‘even if they were not large in absolute terms they are significant’.
e) whilst there was evidence that spouse applications fell by 21% in 2011, refusal had generally been increasing before this point, and there was no evidence about the numbers who would have been prevented from applying. Numbers were also comparable though slightly less for June August in 2009
f) every country with 250 or more applications has a language test centre , and the list of exempt countries is kept under review, whilst there are problems with availability of appropriate tests in some countries, the real problem lies with how SSHD will apply the exemptions
g) whilst the costs of acquiring linguistic skills might be problematic for applicants – there are other large costs associated with the same process which have not been considered disproportionate– e.g. the visa application fee £800, the requirement to maintain and accommodate spouses without state support
h) SSHD’s (disputed) assessment was that 40-50 hours tuition would be required for the test;
i) there was an exceptional circumstances exemption. Whilst the evidence showed was difficult for those with medical conditions from the third world to meet (due to the requirement for production of evidence) this was the only means of safeguarding against fraud.
3. There was no failure to comply with Section 55 of the Borders Act 2009 (best interests of the child) given that it was expressly considered in the Equality Impact Assessment of October 2010. It could not be considered in an abstract manner, and could not therefore render the Rule unlawful for want of satisfaction of the legality requirement in Article 8 ECHR, or on grounds of proportionality.
4. In relation to Article 14 ECHR (obligation not to discriminate in relation to enjoyment of ECHR entitlements)/ Article 8 ECHR (right to private and family life), the nationality exemptions could not amount to direct discrimination based on nationality because the ‘bright line; of countries considered to be English speaking is a rational one, and those who are exempt are not in a relevantly similar position to those who are not.’
5. There was no indirect discrimination on grounds of nationality, ethnic origin or disability under Article 14 ECHR/Article 8 ECHR. Evidence of the disparate impacts of the pre-entry tests were based on poverty, lack of educational opportunities and rurality etc and not on nationality. Furthermore, the difference in treatment had an objective and reasonable justification – exemption of those who would save for in rare cases meet the test, and was proportionate.
6. Arguments on indirect gender discrimination and the extent to which the disparate effect on women amounts to unlawful discrimination under Article 14/8 ECHR would not be considered given the absence of evidence, and the lateness that such issues were raised.
7. The application to pursue EU arguments-i.e. discrimination against British nationals and their spouses as compared to EU nationals and spouses was rejected, though could be considered in the light of this judgment and developments in Bhavyesh (CO/4526/2011)
8. It was unarguable that SSHD failed to pay proper and due regard to the views of stakeholders before taking the decision to change the Rules. The complaint that the Home Secretary did not accept the view of the majority of the consultees (67% were opposed to the introduction of the rule), or that she did not accord sufficient weight to those views is not a ground for challenge either based on procedural impropriety or within traditional Wednesbury criteria of propriety of purpose, relevancy or unreasonableness.
9. Common rationality arguments – targeting the small and falling percentages of spouses on temporary leave who fail the test could not succeed. There was a rational reason for concern with this group given the increase in those taking the less demanding ESOL route for acquiring linguistic skills for the purpose of the Rules.
There are a number of very sad cases in which applicants meet all of the relevant criteria, and cannot return home because of threats to their life etc, or they struggle to meet the requirements because they live in places such as Gaza which is blockaded.
The claimants have been granted leave to appeal against this judgment, and JCWI will continue with its intervention.
In the meantime, and until such time as there is a successful appeal, this judgment is binding in relation to the general legality of the pre-entry testing scheme introduced by paragraph 281.
However, despite, and given the above, it is important to note that challenges based on individual circumstances through for example the refusal to apply the exemptions in sympathetic cases, or possibly, in cases involving excessive delays could still currently succeed on a case by case basis under Article 8 ECHR. Furthermore, arguments about discrimination and EU nationals and indirect discrimination under Article 14 ECHR in relation to sex have yet to be ventilated. The former is to be dealt with in Bhavyesh (CO/4526/2011).
In the meantime, you can read all about why we support the learning of English language, but oppose the use of immigration law and pre-entry tests here, here and here. You can also read our more detailed paper we co-authored with ILPA and submittted to Parliament at the time these Rules were made
You can also access the expert reports referred to in the judgment by Dr Wray below