Supreme Court to rule on challenge against pre-entry English test

Published: Wednesday 18th November 2015 by The News Editor

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The UK’s highest court gives a decision today on 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 Supreme Court justices in London have been urged to rule that the pre-entry measure is “unreasonable, disproportionate and discriminatory”.

The issue to be decided upon by the panel of judges, headed by the court’s president Lord Neuberger, is whether the requirement amounts to a violation of a couple’s right to a private and family life under the European Convention on Human Rights (ECHR).

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

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. Both challenges were by wives who are British citizens. Their husbands are foreign nationals and wish to join them in the UK.

But the appeal judges ruled against them in April 2013.

In the latest round of the legal action, the Supreme Court is to rule on the women’s appeals from that decision.

Mrs Saiqa Bibi and Mrs Saffana Ali both claim the requirement breaches their right to a private and family life under article 8 of the 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.

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.

Neither of the husbands at the centre of the appeals can speak English. 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.

Published: Wednesday 18th November 2015 by The News Editor

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