Supreme Court rules English language requirement for partners is lawful but guidance may breach Article 8

Applicants seeking to come to the UK to join their British, settled or refugee spouses are required to demonstrate their English language ability unless they are exempted. In R (on the applications of Ali and Bibi) v Secretary of State for the Home Department [2015] UKSC 68 the British Appellants challenged this Rule (“the Rule”, saying that it was a violation of their right to family life with their foreign spouses. The Home Office has published guidance on the Rule, explaining when an applicant will qualify for an exemption based on exceptional circumstances.

In short, the Court upheld the Rule itself as lawful. However, the possibility was raised that the Home Office guidance on applying the Rule could be unlawful because it is imprecise and restrictive. The matter is not finished: the Court invited submissions from the parties on whether it would be appropriate to make a declaration that the guidance was incompatible with Article 8 of the ECHR.

The facts

The partner of a British Citizen applying for Entry Clearance to the UK is required to demonstrate that they meet an English Language requirement. Since July 2012 this has been stated in E-ECP 4.1 of Appendix FM.

An applicant will meet this requirement if they are a citizen of a majority English speaking country, have a UK NARIC recognised degree taught in English or have passed a specified English language test at CEFR level A1 (the only accepted test taken out of country is now IELTS).

The applicant will be exempt from the English language requirement if they are aged 65 or over, have a disability which prevents them meeting the requirement or there are exceptional circumstances which prevent them from being able to meet the requirement prior to entry to the UK.

Six different aims of the English language requirement were identified:

1. To assist the foreign partner’s integration into the UK;
2. To improve the foreign partner’s employment chances;
3. To raise awareness of the importance of language and prepare for the settlement tests;
4. To save translation costs;
5. To benefit any children of the couple; and
6. To reduce the vulnerability of newly arrived spouses.

The Appellants

The Appellants were both British Citizens, and their husbands outside the UK. The first Appellant, Mrs Ali, relocated to Yemen to live with her husband but wanted to return to the UK with him. Mr Ali did not speak any English, was illiterate and was unfamiliar with the Latin alphabet. In any event, there was no approved English language test centre in Yemen.

The second Appellant, Mrs. Bibi, was living in the UK. Her husband had completed education in Urdu but was unable to obtain English language tuition in his local area. Obtaining this tuition would have meant relocating to another city for several months, or making a daily four hour round trip.

The Appellants’ spouses had not yet made applications for entry clearance and were not challenging an immigration decision. Rather, they argued that the Rule itself was unlawful. The Appellants said that the Rule was 1) incompatible with the right to private and family life stated in Article 8 ECHR and 2) unjustifiably discriminatory contrary to Article 14 ECHR and/or 3) irrational and therefore unlawful on common law principles.

Judgment

The Court held that requiring a foreign partner to have a certain level of English before coming to the UK was an interference with the right to family life under Article 8 of the ECHR, but interference can be justified if it is in pursuit of a legitimate aim and proportionate. The Court found that the six “benign” justifications stated above were in pursuit of a legitimate aim: the economic well-being of the country. While the Court was not wholly convinced that the Rule would meet each of the six objectives, there was a rational connection between requiring a foreign spouse to have a basic standard of English on arrival, and the aim of securing the economic well-being of the country.

The Court did not consider that the Rule itself was unlawful as in most cases the interference would not be too great, and where interference would be too great the Rule made provision for “exceptional circumstances”. The problem lay in the Home Office guidance as to what constituted exceptional circumstances. The guidance did not cater for applicants where it was simply impracticable for them to learn English, or to take the test in their country of origin as the facilities were non-existent or inaccessible:

“The guidance should be sufficiently precise, so that anyone for whom it is genuinely impracticable to meet the requirement can predictably be granted an exemption.”

The Court was not persuaded by the Article 14 point. Discrimination can be justified under Article 14 and the Court found that being a national of an English-speaking country was a sufficient indicator that the foreign partner could integrate into the UK.

There was some disagreement between the judges on what the appropriate remedy should be, and they gave judgment in three separate judgments. The possibility of a declaration of incompatibility, a statement made by the Court that the guidance is incompatible with Article 8 ECHR, was raised. As this was not a remedy sought by the Appellants the Court invited submissions on the matter and will reconvene at a later date.

Conclusions

It is therefore possible that the guidance itself could be declared incompatible with Article 8 ECHR. The judges were somewhat divided as to what aspects of the guidance were too restrictive, and what may require amending. Submissions from the parties will need to address what should constitute exceptionality.

In addition to the substantive content of the guidance, the reference to guidance being “precise” is important. Should the guidance be declared incompatible with Article 8 ECHR there is the potential for other imprecise guidance on exceptionality in Article 8 cases being revised so that an applicant could predict whether they fell within the definition, or to challenge guidance where the criteria for exceptionality are not clear.

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