Immigration Rules challenge fails in court

The Court of Appeal has dismissed an appeal by two women who were challenging the lawfulness of a section of the Government’s family Immigration Rules.

English language requirements

Mrs Saiqa Bibi and Mrs Saffana Abdulla Mohammed Ali had raised a legal challenge against a rule requiring spouses and partners to demonstrate a basic knowledge of the English language before they are granted a visa to enter or remain in the UK.

This requirement was introduced by the Government on 29th November 2010 and applies to people who are:

• a national of a country outside the European Economic Area and Switzerland; and
• in a relationship with a British citizen or a person settled here; and
• want to apply to enter or remain in the UK as that person’s husband, wife, civil partner, fiance(e), proposed civil partner, unmarried partner or same-sex partner.

When announcing the requirement, the Government explained that it would apply to applications for entry clearance, leave to enter, leave to remain and further leave to remain, but would not apply to indefinite leave to remain or citizenship applications where the existing Knowledge of Life requirement continues to apply.

The Government justified the requirement by claiming that if spouses and partners were able to speak English, they would integrate better into British society and would stand a greater chance of finding work.

The challengers

Both women involved in the claim are British citizens, and are married to foreign nationals who do not speak English.

According to the summary of the circumstances of the case given in the Court of Appeal judgment, Mr Ali is a national of Yemen and lives in that country. He is illiterate, has no computer skills and would find it very difficult to learn English. On top of this, there is apparently no approved test centre in Yemen where he could learn English to the required level, nor could he afford the fees involved.

Mrs Bibi’s husband is a citizen and resident of Pakistan, and the couple have a young child. He is educated, but lives in Kolti where there is no approved test centre, and none closer than 115 kilometres away. He cannot afford to relocate, and it would not be realistic to commute daily. In addition, he would need to learn computer skills, so he could take the online test.

Breach of human rights

In their legal challenge, the women claimed that the English language requirement was irrational and breached a number of their rights under the European Convention on Human Rights (ECHR). They argued that it was:

• a disproportionate interference with their rights under Article 8 (right to respect for private and family life),
• contrary to Article 12 (right to marry), and
• discriminatory under Article 14 (prohibition of discrimination).

Court ruling

The case was initially heard in the High Court, where the judge, the Honourable Mr Justice Beatson, ruled against the claimants, finding that the language requirement rule was legitimate and proportionate.

Mrs Bibi and Mrs Ali then took their claim to the Court of Appeal, where the judges also found in favour of the Government by a two to one majority, and dismissed the appeal.

“I do not consider that the amended Rule 281 contravenes any requirement of the ECHR or of domestic law,” said Lord Justice Maurice Kay, in his ruling. However he left the door open to further challenges in the future.

“This does not mean that in a future case, on judicially determined facts, an individual claimant may not be able successfully to challenge the application of the amended Rule in his or her case,” he said.

Contains public sector information licensed under the Open Government Licence v1.0.