The English language requirement under Appendix FM of the Immigration Rules

Appendix FM of the Immigration Rules imposes an English language requirement on those seeking entry clearance or leave to remain in the UK as a partner or as a parent of a child in the UK.

Appendix FM states that an applicant can satisfy the language requirement in one of the following ways:

• The applicant is a national of a majority English speaking country which currently includes Antigua and Barbuda; Australia, the Bahamas, Barbados; Belize, Canada, Dominica, Grenada, Guyana, Jamaica, New Zealand, St Kitts and Nevis, St Lucia, St Vincent and the Grenadines, Trinidad and Tobago and the United States of America; or
• The applicant has an academic qualification which is recognised by UK NARIC to be equivalent to the standard of a Bachelor’s or Master’s degree or PhD in the UK, which was taught in English; or
• By having passed an English language test in speaking and listening at a minimum level of A1 of the Common European Framework of Reference for Languages (CEFR) with a provider approved by the UK Border Agency;

Evidence specified by the Immigration Rules must be provided in order to satisfy the language requirement. Where an applicant satisfies the requirement based on being a national of a majority English speaking country they will be required to provide their original valid passport.

To evidence an academic qualification an original certificate must be provided by the relevant institution confirming the award of the academic qualification.

To confirm a pass of an English language test, the original pass test certificate should be submitted with the application.

The Immigration Rules provides an exemption from meeting the English language requirement only in certain limited circumstances:

• The applicant is aged 65 or over;
• The applicant has a disability (physical or mental condition) which prevents the applicant from meeting the requirement; or
• There are exceptional circumstances which prevent the applicant from being able to meet the requirement prior to entry to the UK.

In order to be exempted from meeting the English language requirement, the UKBA will require documentary evidence to be provided. For example, where an applicant is claiming exemption on the basis of age, they will need to provide their passport and/or their full birth certificate.

Where exemption is sought on the basis of disability, medical evidence from a suitably qualified practitioner must be provided demonstrating that the applicant has a physical or mental condition that would prevent them from learning English and/or taking a test.

Exemption based on exceptional circumstances will be considered on a case by case basis and must be supported by evidence obtained from an independent source, or evidence which is capable of being independently verified by a UKBA caseworker. The UKBA’s guidance provides the following examples of situations in which it might be appropriate, subject to the necessary supporting evidence, to authorise an exemption:

• If the sponsor in the UK is seriously ill and requires immediate support or care from the applicant whilst they are receiving medical attention in the UK and there is insufficient time for the applicant to access learning and/or to take a test.

• Where a country or region is affected by conflict or humanitarian disaster the UK Border Agency will consider whether the situation makes it unreasonable for individuals to learn English and/or to take a test. In such circumstances we will consider the nature of the situation including the infrastructure affected and whether it would be proportionate to expect an applicant to meet the English language requirement.

UKBA has confirmed that the language requirement does not apply to the spouses and partners of members of HM Forces applying under Part 7 of the Immigration Rules.

The Court of Appeal has recently given judgment in a case which sought to challenge the introduction of the English language requirement for those seeking entry to the UK as a spouse under the old paragraph 281 of the Immigration Rules. In Bibi and another v Secretary of State for the Home Department [2013] EWCA Civ 322 the Court held by a majority that the English language requirement was not unlawful and did not breach Article 8 of the European Convention on Human Rights (which provides for the right to respect for private and family life).

For further advice regarding meeting the English language requirement within Appendix FM of the Immigration Rules, or in any other category, then please contact our Immigration Barristers on 0203 617 9173 or email:  info@richmondchambers.com.