R (Bibi) v Secretary of State for the Home Department R (Ali) v Same(Liberty and Joint Council for the Welfare of Immigrants intervening)

JurisdictionEngland & Wales
JudgeLord Justice Maurice Kay,Lord Justice Toulson,Sir David Keene,OR
Judgment Date12 April 2013
Neutral Citation[2013] EWCA Civ 322
Docket NumberCase No: C4/2012/0165
CourtCourt of Appeal (Civil Division)
Date12 April 2013
Between:
The Queen on the Applications of (1) Mrs Saiqa Bibi And (2) Mrs Saffana Abdulla Mohammed Ali
Appellants:
and
The Secretary of State for the Home Department
Respondent

and

Liberty Jcwi
Interested Parties

[2013] EWCA Civ 322

Before:

Lord Justice Maurice Kay, Vice President Of The Court Of Appeal, Civil Division

Lord Justice Toulson

Sir David Keene

Case No: C4/2012/0165

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT (BEATSON J)

Ref: CO11435/2010

Royal Courts of Justice

Strand, London, WC2A 2LL

Manjit S Gill QC and Mr Tony Muman (instructed by J M Wilson Solicitors LLP) for the Appellant (1)

Mr Ramby de Mello and Mr Abid Mahmood (instructed by Fountain Solicitors) for the Appellant (2)

Mr James Eadie QC and Dr Christopher Staker (instructed by Treasury Solicitor) for the Respondent

Ms Karon Monaghan (instructed by Liberty) for the first intervener and Mr Shahram Taghavi (instructed by Charles Russell LLP) for the second intervener.

Hearing dates: 20, 21 November 2012

Lord Justice Maurice Kay
1

On 1 October 2010, the Secretary of State laid before Parliament important amendments to the Immigration Rules. Their purpose was to require a foreign spouse or partner of a British citizen or person settled in the United Kingdom to produce a test certificate of knowledge of the English language to a prescribed standard prior to entering the United Kingdom. Previously such persons were only required to demonstrate such knowledge two years after entering the United Kingdom. The amendment came into force on 29 November 2010. The amended Rule 281 contains a number of exceptions. The requisite standard is lower than that previously applied post-entry. In these proceedings, the appellants challenge the lawfulness of the amendment by reference to Articles 8, 12 and 14 of the European Convention on Human Rights and Fundamental Freedoms (ECHR) and to common law principles. On 16 December 2011, Beatson J dismissed the challenge on all grounds: [2011] EWHC 3370 (Admin).

2

In the opening paragraphs of his judgment, Beatson J summarised the rival contentions of the parties in this way:

"2. …The Home Secretary contends that [the amended Rule 281] is a lawful way of promoting the integration of foreign spouses and partners into the community and protecting public services.

3. Broadly speaking, it is submitted on behalf of the claimants that the new rule interferes with their rights under Articles 8 and 12 … 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.

4. 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 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 it is thus contrary to Article 14 … read with Articles 8 and 12. It is also submitted that it is arbitrary, irrational and ultra vires at common law."

Not all of these grounds have been pursued with equal vigour in this Court.

Rule 281

3

It is appropriate to set out the amended Rule 281. It provides:

"The requirements to be met by a person seeking leave to enter the United Kingdom with a view to settlement as the spouse or civil partner of a person present and settled in the United Kingdom or who is on the same occasion being admitted for settlement are that:

(i)(a)(i) the applicant is married to or the civil partner of a person present and settled in the United Kingdom or who is on the same occasion being admitted for settlement; and

(ii) the applicant provides an English language test certificate in speaking and listening from an English test provider approved by the Secretary of State for these purposes, which clearly shows the applicant's name and qualification obtained (which must meet or exceed level A I of the Common European Framework of Reference) unless:

(a) the applicant is aged 65 or over at the time he makes his application, or

(b) the applicant has a physical or mental condition that would prevent him from meeting the requirement, or

(c) there are exceptional compassionate circumstances that would prevent the applicant from meeting the requirement, or

(iii) the applicant is a national of one of the following countries Antigua and Bermuda, Australia, the Bahamas, Barbados, Belize, Canada, Dominica, Grenada, Guyana, Jamaica, New Zealand, St Kitts and Nevis, St Lucia, St Vincent and the Grenadines, Trinidad and Tobago, United States of America; or

(iv) the applicant has obtained an academic qualification (not a professional or vocational qualification) which is deemed by UK NARIC to meet the recognised standard of a Bachelor's or Master's degree or PhD in the UK, from an educational establishment in one of the countries [listed in (iii) above or Ireland or the UK] and provides the specified documents; or

(v) the applicant has obtained an academic qualification (not a professional or vocational qualification) which is deemed by UK NARIC to meet the recognised standard of a Bachelor's or Master's degree or PhD in the UK and

(1) provides the specified evidence to show he has the qualifications and

(2) UK NARIC has confirmed that the qualification was taught or researched in English; or

(vi) has obtained an academic qualification (not a professional or vocational qualification) which is deemed by UK NARIC to meet the recognised standard of a Bachelor's or Master's degree or PhD in the UK, and provides the specified evidence to show:

(1) he has the qualification; and

(2) that the qualification was taught or researched in English

OR

(b)(i) the applicant is married to or the civil partner of a person who has a right of abode in the United Kingdom or indefinite leave to enter or remain in the United Kingdom and is on the same occasion seeking admission to the United Kingdom for the purposes of settlement and the parties were married or formed a civil partnership at least 4 years ago, since which time they have been living together outside the United Kingdom; and

(b)(ii) the applicant has sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, unless he is under the age of 18 or aged 65 or over at the time he makes his application, and

….

(ii) the parties to the marriage or civil partnership have met; and

(iii) each of the parties intends to live permanently with the other as his or her spouse or civil partner and the marriage or civil partnership is subsisting; and

(iv) there will be adequate accommodation for the parties and any dependants without recourse to public funds in accommodation which they own or occupy exclusively; and

(v) the parties will be able to maintain themselves and any dependants adequately without recourse to public funds; and

(vi) the applicant holds a valid United Kingdom entry clearance for entry in this capacity."

Other provisions apply the pre-entry requirement to applications for entry and leave to remain as a fiancé(e), proposed civil partner, unmarried partner or same-sex partner.

4

These convoluted provisions may be summarised as follows. Unless an applicant is a national of one of the specified countries (which are considered to be "majority English-speaking") or can invoke one of the other exemptions, he or she must have an English language test certificate at the requisite level from an approved provider or have a degree-level qualification which was taught or researched in English. The other stated exemptions are applicants who are aged 65 or over; those with a physical or mental condition which would prevent them from meeting the requirement; and those in respect of whom there are "exceptional compassionate circumstances" which would prevent them from meeting the requirement. The "exceptional compassionate circumstances" exemption is applied to persons who are nationals of countries where there is no approved test centre. About 30 such countries are listed on the website of the UK Border Agency. It is not limited to such circumstances.

The circumstances of these appellants

5

The cases concern married couples. In each case the wife is a British citizen and the husband is a foreign national who does not speak English. Mr Ali is a national of Yemen and lives in that country. He had no formal education and is illiterate. He would find it very difficult to learn English. It is said that there is no approved test centre in Yemen which provides tuition in English to the required level. Moreover, the test can only be taken online and Mr Ali has no computer skills. He cannot afford the fees involved.

6

Mrs Bibi's husband is a citizen and resident of Pakistan. They have a young child. The husband was educated up to matriculation level in Urdu. He lives in Kolti where there is no approved test centre. The nearest ones are 115 and 141 kilometres away. Daily commuting would not be practicable and he cannot afford to relocate to Rawalpindi for six months. He, too, would need to learn computer skills.

7

I have set out these circumstances...

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