The UK Supreme Court has rejected a challenge against the compulsory pre-entry English language test for spouses seeking to enter the UK as the family member of a British Citizen or person settled and present there. The case of R (on the applications of Ali and Bibi) v Secretary of State for the Home Department [2015] UKSC 68 challenged the validity of a 2010 amendment to the Immigration Rules which now requires an individual to pass an English language competency test before they will be admitted to reside in the UK.
The appellants in this case are both UK citizens, married to non-UK nationals since 2009 and 2010 respectively. Both women’s husbands were unable to satisfy the pre-entry language requirement. Under the new rules, the test would have required Mrs Bibi’s husband to relocate to a different region in Pakistan for several months, which was neither feasible nor affordable. In Mrs Ali’s case, the failure to complete the mandatory test was due to the fact that there was no test centre in Yemen where her husband resided.
The applicants argued that the rule in question constituted a breach of human rights under the European Convention on Human Rights (ECHR), primarily their Article 8 rights to respect for private and family life and Article 14 protection from discrimination in the enjoyment of their rights. Their legal team argued against the legality of the rule as a whole, and not how the rule affected them in their particular circumstances.
In defence of the rule, the UK listed the six primary objectives of the introduction of such a test. These objectives varied from promoting integration, assisting in ensuring access to the labour market and to reduce the vulnerability of such individuals once they arrive in the UK. The UK Supreme Court agreed with the High Court’s determination that the rule, by itself, was not manifestly unlawful. However, it did go further than the High Court by inviting submissions from both parties regarding the guidance given about the language test and whether the guidelines on exceptions could be deemed compatible with Article 8 rights in cases where compliance with the requirements were not feasible.
This judgment suggests the guidance supplied by the Home Office on the exceptions to the pre-entry examination could be unlawful due to its restrictive nature. In her substantive judgment, Lady Hale recommended that the guidance accompanying the rules should be altered to grant exemptions in circumstances where it is impractical for an applicant to complete the pre-entry test. However, as the case before the Court was concerned with the validity of the rule itself and not the guidelines regarding exemptions, the Court could not make a judgment regarding their validity without receiving further submissions from the parties.
Click here for the full list of UK Immigration Rules relating to Family Members.
Click here to read the judgment in full.