The Supreme Court has ruled that the requirement for a foreign fiancée, partner or spouse of a British citizen or legal permanent resident to pass an English competency test in order to enter or remain in the UK does not violate Article 8 of the European Convention of Human Rights (ECHR). The unanimous ruling followed a previously rejected appeal in the Court of Appeal and the original ruling in the High Court that the Immigration Rule was not unlawful. The Rule, amended in November 2010, requires foreign spouses and partners to pass a mandatory English competency test before applying for a UK settlement visa or further leave to remain. Before the Rule was amended, foreign spouses simply had to pass an English test two years after entering the UK in order to qualify for indefinite leave to remain (ILR).
Lady Hale (deputy president of the court) noted that the requirement regarding English competency had six main aims: to assist the partners’ integration into British society at an early stage, to improve their chances of employment, to raise awareness of the importance of language and prepare for necessary tests, to save translation costs, to benefit the couples’ children, and to reduce the vulnerability of newly arrived spouses, especially women. The appellants are both British citizens married to foreigners. Saiqa Bibi, born and resident in the UK, married a citizen of Pakistan, with whom she has a child. Her husband, who lives in Pakistan, neither speaks nor writes any English. No English tuition is available where he lives, and he would have to travel four hours to obtain tuition. He cannot afford to move to the nearest location to obtain tuition, owing to his economic situation. The second appellant, Saffana Ali, is also a British citizen. She married a non-English-speaking man in Yemen; his inability to speak English meant that she decided to live with him in Yemen, but her wish is to live together in the UK. Both husbands also lack vital computer skills.
Lady Hale noted that the main argument of the appellants was that the Rule interfered with the right to respect for family life, protected by Article 8 of the ECHR, or that it discriminated against availing of that right, in violation of Article 14 of the ECHR; or that it was unlawful owing to its irrationality. She noted that the appellants had not been able to show that the rule was unlawful; in fact, in a previous case, Abdulaziz, the European Court held that Article 8 did not impose an obligation on any state to respect the choice of a married couple to reside in that particular state. Nor did states have to accept non-national spouses for settlement in their chosen country.
Lady Hale said that interference with the right to family life contained in Article 8 must be proportionate, striking a balance between individual and community rights. The Court also mentioned the Guidance which accompanies the Immigration Rule; this Guidance stipulates that an exemption can be granted from the need to show sufficient proficiency in English, whenever exceptional circumstances are present. However, exceptional circumstance as outlined by the Guidance could not be proved in this case. The justices noted that there were many cases in which the rule would not strike the fair balance required by Article 8. Lady Hale argued that the way to avoid infringement of Article 8 in individual cases was to redraft the Guidance to grant exemptions where fulfilment of the requirement was impracticable.
Lord Neuberger agreed that the current Guidance could possibly infringe Article 8 in specific cases, yet concluded that the Immigration Rule itself was not disproportionate. Lady Hale noted that although interference with Article 8 was substantial (because couples would be forced to live in separate countries until the Rule was fulfilled), the problem lay in the Guidance, rather than in the Rule itself. Under the current Guidance, only a tiny number can prove ‘exceptional circumstances’ qualifying for exemption. “The impracticability of acquiring the necessary tuition and practice or of accessing a test centre is not enough. Financial hardship is not enough…” Lady Hale concluded that there would be many cases in which a fair balance would not be struck. There is no need to declare the Rule unlawful, she says, though the Guidance should be redrafted to allow for cases in which it is impracticable for a person to learn English or take the required tests, either because facilities do not exist, because they are inaccessible, or because of the expense and distance involved.