Supreme Court: English language test in line with Article 8

Yesterday in the case of R (on the applications of Ali and Bibi) v Secretary of State for the Home Department [2015] UKSC 68 the Supreme Court reviewed the Immigration Rule governing the English language test for foreign spouses. The Supreme Court dismissed a challenge brought against the introduction of English language testing for spouses prior to their entry into UK as the family of British citizens and those present and settled in the UK. This must not be seen as bad news for Applicants as although the challenge was dismissed the three Judges sympathised with the challenge and indicated that the Home Office guidance in this respect may need reviewing and may become wider and thus more liberal.

Facts of Case

The immigration appeals in this case concerned a challenge specifically of Immigration rule E-ECP 4.1 and E-LTRP 4.1 in Appendix FM. The said rule requires foreign family members of British citizens or persons settled in the UK to pass an English language test before their entry into the UK. The appeal considered whether the rule could be said to be a justifiable interference with the right to respect for private and family life protected by article 8 of the European Convention on Human Rights (‘EHCR’). Further considerations were whether it could be said to be unjustifiably discriminatory or unlawful.

The case concerned two British citizens who had foreign spouses. The foreign spouses were unable to meet the English language criteria. For one of the spouses meeting the criteria meant that he would have to relocate to a different part of Pakistan for several months which would not have been affordable to him. For the other spouse there were no English Language test centres in the entirety of Yemen.

Immigration Rule Governing English Language Test

The Government’s thoughts behind the English language tests for spouses were to assist applicants:

  • to integrate into British society;
  • to improve the chance of employment;
  • to prepare applicants for the tests that would later have to be passed for indefinite leave to remain;
  • to minimise translation costs;
  • to reduce the vulnerability of spouses, in particular women.

Supreme Court’s Decision

The Supreme Court dismissed this challenge and found that the Immigration Rule itself could not be said to breach article 8 rights and could not be described as unlawful. The case however allowed the Court to consider the operation of the Home Office Guidance as it currently stands in view of article 8 rights. The three Judges sympathised with the challenge and indicated that the Home Office guidance in this respect may need reviewing and may become wider and thus more liberal.

Lady Hale in particular held:

‘that 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. To avoid that unfortunate outcome, the Government may need to provide opportunities for spouses and partners to meet the requirement or may need to amend its guidance.’

Lady Hale then proposed an exemption could be required in the Home Office Guidance, as a condition of entry for Applicants to demonstrate the required language skills within a comparatively short period after entry to the UK.

This is good news for Applicants as it means that there is a clear consensus for a move towards widening the Home Office guidance to grant exceptions where Judges see fit. In particular in cases where foreign spouses may be unable to afford the costly fees of passing the English Language test and where foreign spouses are residing in countries such as Yemen where there are no English test centres. Lady Hale has opened the doors to a possible change in Home Office guidance with her judgment.

Meeting the Home Office’s English Language Requirement

If you are applying for a UK visa that requires you to prove your level of English, our expert Immigration Solicitors will be able to guide you. You can prove your knowledge of English by either:

  • Passing an approved English language test at the required level (varies depending on the visa) in reading, writing, speaking and listening; or
  • Having an academic qualification that has been taught in English and is recognised as being equivalent to a UK bachelor’s degree.

Furthermore, you may be exempt or able to demonstrate that you meet the English language requirement in other ways. Find out more by booking a consultation with our Solicitors who are based in central London. A detailed consultation will ensure that you leave with a greater understanding of what is required of you to make a successful visa application.

Are you affected by the Home Office’s ‘English Language Requirement’?

If you would like to discuss how the English language requirement may affect you, call one of our immigration solicitors in London who will be able to assist you by meeting with you and reviewing your case. There are many providers but many applicants have had their visas refused for taking tests with rogue providers.

We are regularly instructed in Spousal Applications and undertake a detailed review for  Applicants and will be able to guide you through the process of making an Entry Clearance Spousal Visa application step by step and limit the possibility of failure by complying with the strict letter of the law.

We also undertake a great deal of appeal work before the Immigration and Asylum Tribunal and have a successful track record of successful results for our clients. We have the experience and the knowledge required to take your case forward successfully. If you have had a Spousal Visa application refused, contact us to discuss your case so that we can provide you with a case assessment.

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