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Supreme Court: UK a no-go for non-English speaking spouses

English test immigration rule does not breach article 8 ECHR

18 November 2015

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The requirement for a foreign spouse of a British citizen to pass an English competency test before being allowed to remain in the UK does not breach article 8 of the European Convention of Human Rights (ECHR), the Supreme Court has ruled.

The controversial immigration rule requires spouses to demonstrate an ability to speak English and 'understand and use familiar everyday expressions'.

The government had hoped this would help with integration into British society, improve employment chances, save on translation costs, and reduce the vulnerability of new spouses.

The unanimous ruling follows an earlier appeal in the Court of Appeal which was rejected and the initial ruling in the High Court that the immigration rule was not unlawful.

The two appellants, Mrs Saiqa Bibi and Mrs Saffana Ali, argued that the rule was an unjustifiable interference with the right to respect private and family life and that their husbands were unable to satisfy the pre-entry language requirement because it was not feasible for them to do so.

Mr Bibi resides in Pakistan where the nearest approved test centres are 71 miles and 88 miles away. Mr Ali lives Yemen where it was argued there are no approved English language test centres.

The Supreme Court held that despite article 8 including the right of married couples to live together, a state was not obliged to respect this right where couples chose to reside in the country of matrimonial residence and accept the non-national spouses for settlement in that country.

The court acknowledged that interference with this right must still be proportionate, striking a fair balance between the interests of the individuals and the community as a whole.

The guidance which accompanies the immigration rule states that exceptional circumstances may provide an exemption which prevents the applicant from being able to meet the requirement. The justices believe there are many cases which could show the rule as not striking the fair balance required by article 8.

Overseeing the case, they said the rule requiring a competent English ability was not disproportionate but expressed doubt as to the compatibility of the guidance.

Lady Hale suggested that the appropriate solution to avoid infringements would be to grant exemptions in cases where compliance with the requirement was unrealistic.

A possible remedy for the court, therefore, might be to declare that the present application of the guidance is incompatible with the rights of individuals in such circumstances.

The justices highlighted, however, that the appellants did not seek this remedy in this case. Lady Hale, Lord Hodge, and Lord Neuberger concluded that further submissions would be necessary before finally deciding the outcome of the appeal.

Matthew Rogers is an editorial assistant at Solicitors Journal

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Marriage & Civil partnership EU & International