R (Bibi) v Secretary of State for the Home Department R (Ali) v Same(Liberty and Joint Council for the Welfare of Immigrants intervening)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Beatson |
| Judgment Date | 16 December 2011 |
| Neutral Citation | [2011] EWHC 3370 (Admin) |
| Docket Number | Case No: CO/11183/11435/11441/2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 16 December 2011 |
[2011] EWHC 3370 (Admin)
The Honourable Mr Justice Beatson
Case No: CO/11183/11435/11441/2010
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN BIRMINGHAM
Birmingham Civil Justice Centre
33 Bull Street, Birmingham, B4 6DS
Manjit S Gill QC, Ramby de Mello and Tony Muman (instructed by JM Wilson Solicitors) for the First Claimants
Ramby de Mello and Abid Mahmood (instructed by Fountains Solicitors) for the Second Claimant
Manjit S Gill QC, Ramby de Mello and Zainul Jafferji (instructed by JM Wilson Solicitors) for the Third Claimant
James Eadie QC and Christopher Staker (instructed by The Treasury Solicitor) for the Defendant
Rabinder Singh QC and Aileen McColgan (instructed by Liberty) for the First Interested Party
Shahram Taghavi (instructed by Bates Wells and Braithwaites LLP) for the Second Interested Party
Hearing dates: 26–27 July 2011
Further submissions: 5 August, 23 September and 19 October 2011
INDEX
| I. Introduction | 1 |
| II. Procedural history | 9 |
| III. The evidence | 14 |
| IV. The new rule | 18 |
| V. The position of the claimants | 23 |
| (i) Mr and Mrs Chapti | 24 |
| (ii) Mrs Ali | 28 |
| (iii) Mrs Bibi | 31 |
| VI. The background to the pre-entry language requirement | 33 |
| (i) The 2007 consultation | 34 |
| (ii) The 2009 EIA | 42 |
| (iii) The 2009 IA | 44 |
| (iv) Bringing forward the introduction of the new rule | 48 |
| (v) The 2010 EIA and IA | 50 |
| (vi) The exemptions | 53 |
| VII. Discussion | |
| (i) Challenging an Immigration Rule | 56 |
| (ii) Article 12 | 62 |
| (iii) Is Article 8 engaged? | 66 |
| (iv) The approach to justification under Article 8(2) | 73 |
| (v) Are the new rule's aims legitimate? | 82 |
| (vi) Proportionality | 87 |
| (vii) Article 14 | 116 |
| (viii) The other new grounds | 144 |
| (ix) The prematurity issue | 147 |
| VIII. Conclusions | 148 |
I. Introduction
This is a challenge to the amendments to paragraph 281 of the Immigration Rules which were laid before Parliament on 1 October 2010 and came into effect on 29 November 2010. The amendments (which I refer to as "the new rule") require the foreign spouses and partners of British citizens or persons settled in the UK applying for what I shall refer to as "spouse visas", that is for leave to enter the UK with a view to settlement, to produce a test certificate of knowledge of the English language to a prescribed standard. Hitherto, save where they were applying for indefinite leave, spouses and partners were only required to demonstrate this knowledge two years after entering the United Kingdom. The new pre-entry test assesses speaking and listening. The level required is (see [19]) lower than that required in the post-entry test for those applying for settlement, and it is subject to a number of exceptions: see [22].
The claimants maintain that the new rule is a disproportionate and unlawful interference with their and their spouses' human rights and/or irrational under well-known and longstanding common law principles. The Home Secretary contends that it is a lawful way of promoting the integration of foreign spouses and partners into the community and protecting public services.
Broadly speaking, it is submitted on behalf of the claimants that the new rule interferes with their rights under Articles 8 and 12 of the European Convention on Human Rights ("the Convention") to marry and live together in this country. This, it is argued, is because significant numbers of applicants for spouse visas will find it difficult or impossible in practice to satisfy the new rule. There are, it is stated, a number of reasons for this difficulty. They include living in places where English tuition and testing facilities are not available, having little or no education, being of limited intellectual ability, and being of an age when learning a new language will be very difficult.
It is contended that the resulting interference with the rights of the claimants, as British citizens or otherwise settled in this country, and in the case of Mr Chapti the spouse of such a person, requires powerful justification, and that there is no such justification in this case. It is also contended that the provision is discriminatory on grounds particularly of race and nationality, but also ethnic origins, language, gender and disability, and is thus contrary to Article 14 of the Convention read with Articles 8 and 12. It is also submitted that it is arbitrary, irrational and ultra vires at common law.
The defendant resisted the general challenge to the new rule, and also maintained that the challenges of the individual claimants are, for slightly different reasons, each premature. It is argued that the challenge to the new rule can only succeed if it is established that the rule is incapable of applying consistently with the Convention to the circumstances of any case, or that its very adoption was an abuse of power. In this case it is submitted this cannot be established because Article 8 does not oblige a state to respect the choice by married couples of the country of their matrimonial residence.
If the new rule is not invalid, the defendant submitted that the question whether its application is a disproportionate interference with that person's Article 8 rights has to be resolved by a fact-sensitive consideration of the individual decision. That decision will be made after an application to an Entry Clearance Officer ("ECO") for leave to enter. It may take the form of a decision by the Secretary of State to grant or refuse leave outside the rules on the basis of the individual's Convention rights. A refusal by an ECO will be subject to appeal to the First Tier Tribunal. A decision by the Secretary of State will be susceptible to either an appeal or judicial review.
Accordingly, since (see below) the facts in the cases of Mrs Ali and Mrs Bibi have not yet been established, the defendant maintained that at this stage it cannot be said that Article 8 is engaged in either of them. In the case of the claim by Mr and Mrs Chapti, the defendant maintained that judicial review is inappropriate because of an alternative remedy, a pending appeal from a decision of the First Tier Tribunal (Immigration and Asylum Chamber) concerning an application under paragraph 281 before the amendment introducing the new rule. If that appeal succeeds their challenge in these proceedings would be moot. If that appeal is unsuccessful, these proceedings are said to be premature because Mr Chapti has not made an application under the new rule and the facts in relation to its applicability to him have not yet been determined.
To the extent that Article 8 is engaged the defendant maintained that any interference with family life is proportionate in the cases of these claimants, none of whom have enjoyed a family life with their spouses in the UK. The Article 12 ground is said not to add anything to that based on Article 8 because Article 12 is concerned only with the right to marry and not with where a married couple can live. As to the case based on Article 14 and common law irrationality, it is submitted on behalf of the defendant that the differences between the requirements for those from English speaking countries and those from other countries have a rational justification.
II. Procedural history
Mr and Mrs Chapti's cases were lodged on 26 October 2010, and those of Mrs Ali and Mrs Bibi on 2 November 2010. On 28 January 2011 the three sets of proceedings were consolidated by an order of Hickinbottom J. On 1 March 2011, following a hearing, I granted the claimants permission and made procedural directions. On 19 May 2011 I permitted Liberty and the Joint Council for the Welfare of Immigrants ("JCWI") to intervene. I am grateful for the clear and focussed submissions of Mr Singh QC, Ms McColgan, and Mr Taghavi.
On 12 April, in a document entitled "supplementary grounds", the claimants sought to add a new ground of challenge alleging discrimination of those in the position of the claimants as compared to EU nationals and workers and their third country nationals. They did so in the light of the decision in March 2011 of the ECJ in C– 34/09 Ruiz Zambrano but the new ground was unparticularised and no application for permission to advance the new EU ground as required by CPR 54.15 was made until 4 July, three weeks before the hearing. The defendant opposed the application to amend on the ground of lack of particularity. It was also submitted on her behalf that the EU ground was unarguable in the light of the decision of the ECJ in C-434/09 McCarthy (European Citizenship) because that case held that Article 21 of the Treaty does not require the United Kingdom to grant immigration status to the spouse of a British citizen who has never exercised his or her right to free movement. Moreover, it was submitted that, since EU law and domestic immigration law are separate sources of rights, it is not arguable that a person who does not qualify for a particular right under EU law can claim that domestic law will be discriminatory unless it confers a similar right upon them.
Notwithstanding my order that these claimants' applications were to be the lead test cases and other cases were to be stayed behind them, there have been a number of applications for joinder, including one very shortly before the hearing of these cases ( Bhavyesh CO/4526/2011) primarily based on EU Law and Ruiz Zambrano. All these applications were rejected. As far as these proceedings are concerned, it was agreed at the hearing that,...
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