Supreme Court judgement in the cases of Ali and Bibi against the Secretary of State for the Home Department (Ali & Bibi) of 18 November 2015
The Supreme Court today announced its decision on the case of Ali & Bibi, the leading judgement was given by Lady Hale, but included Lord Neuberger the President of the Court and Lords Wilson, Hughes and Hodge.
This is our interpretation of the judgement which was brought to challenge the legality of the English language testing requirement in partner immigration related cases.
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On 29 November 2010, the previous coalition government introduced an English language test requirement into the spouse related immigration rules, which meant that spouses of British nationals or those with settlement status had to pass a prescribed English level test requirement at level A1. This case was brought to challenge the legality of this rule.
As noted by Lady Hale, the highest number of migrants seeking entry or permission under the rule were from Bangladesh, India and Pakistan and therefore whose nationals it would have the most significant impact on.
The immigration rules were subsequently amended and now operate under Annexe FM, but the English language test requirement remains.
The guidance notes to assist applicants provided by the authorities have developed over time. The rules provide for an exemption from having to undergo testing, if the applicant is from a specified country where English is the main language, or where the applicant is over the age of 65, has a medical disability or there are exceptional circumstances. The guidance provides further examples of when an applicant does not need to undergo testing.
The court identified the legal grounds as raised by the appellants to test the lawfulness of the rule, as:
1. breach of Article 8, Right to Family and Private Life of the European Convention on Human Rights; and
2. breach of Article 14, Discrimination.
The court considered the stated aims of the rule:
1. to assist the applicants integration into British Society;
2. to improve their employment prospects;
3. raise the importance of English language tests and to help prepare applicants for the higher English language level test requirement for settlement at B1;
4. to save translation costs;
5. benefit any children they may have; and
6. reduce the potential vulnerability of new arrivals – particularly women.
The court concluded that in reality all of the aims listed above were part of the first aim – to assist applicants with integration into British society.
Therefore the rule or requirement to having an English language requirement is a legitimate aim and enough for the state to allow an interference with family life.
Lady Hale noted that a pre entry English requirement is imposed on economic migrants – it is not entirely clear which group of economic migrants she was referring to, but one assumes the Tier 1 route.
In the absence of any precise data, Lady Hale was unable to conclude that the introduction of testing had led to a reduction in partner related visas.
She noted that the issue was not with the stated rule, but with the immigration guidance notes, which in her view, inadequately identifies situations in which a caseworker should consider when the rule should not apply.
Lady Hale was persuaded by expert evidence which pointed to the obstacles some migrants face in learning the English language, such as having to travel to undertake classes at substantial cost, or having to take additional aspects of the English language such as writing, just in order to take a speaking or listening test.
She observed that only a ‘tiny’ number of applicants were admitted in this way and that it was ‘perhaps unsurprising’ given how the guidance is drafted.
Lady Hale’s view is that the exemption through nationality of a specified English speaking country is a ‘reasonable’ proxy - or to put it another way there is a reasonable connection with the specified English speaking countries and the UK.
The judgement itself does not strike down the rule, but the court has directed that further submissions should be brought on this issue as it was not part of the pleading relating to the case.
The English language testing requirement is here to stay unless this case proceeds to the European Court of Human Rights (ECHR) and if so, until such time it pronounces otherwise – such an event would take years to conclude.
Should this case proceed to the ECHR it may take a different view as to whether the interference imposed by the English language testing requirement strikes the right balance under article 8.
The likely short term scenario is that the Home Office will either be directed to introduce better guidance for those who find it difficult to undergo English language tuition, or will be nonetheless be persuaded to do so.
It also may well have to revise its policy on the new English testing requirements brought into the rules on 5 November 2015 which require applicants to undertake testing with specified providers in designated locations.
A wider implication is that the court has shown it is willing to intervene where it perceives there is unfairness in Home Office guidance – and, even where it is not cited in pleadings.
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