R (Ali and Bibi) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Hodge,Lady Hale,Lord Neuberger,Lord Wilson,Lord Hughes |
| Judgment Date | 18 November 2015 |
| Neutral Citation | [2015] UKSC 68 |
| Date | 18 November 2015 |
| Court | Supreme Court |
[2015] UKSC 68
Lord Neuberger, President
Lady Hale, Deputy President
Lord Wilson
Lord Hughes
Lord Hodge
Appellant (Bibi)
Manjit Singh Gill QC
Tony Muman (Instructed by J M Wilson Solicitors LLP)
Appellant (Ali)
Ramby De Mello
Abid Mahmood (Instructed by Fountain Solicitors)
Respondent
James Eadie QC
Christopher Staker (Instructed by The Government Legal Department)
Intervener (Liberty) Karon Monaghan QC
Aileen McColgan (Instructed by Liberty)
Heard on 25 and 26 February 2015
On 29 November 2010 the Immigration Rules were amended so as to require a foreign spouse or partner of a British citizen or a person settled in this country to pass a test of competence in the English language before coming to live here ("the Rule"). Clearly, for a variety of reasons, some people would find this much harder to do than others. These included many people from India, Pakistan, and Bangladesh, three of the four countries from which the greatest numbers of foreign spouses and partners are drawn (the fourth is the USA). Hence the proposed Rule caused particular concern among those communities in this country where marriage to partners from those countries is most common. They saw it as a discriminatory measure which aimed to limit spousal migration from those and similar countries. These proceedings were launched in November 2010, before the Rule came into force, in order to challenge the validity of the rule itself.
The appellants argue that the Rule is an unjustifiable interference with the right to respect for private and family life, protected by article 8 of the European Convention on Human Rights ("ECHR"); or that it is unjustifiably discriminatory in securing the enjoyment of that right, contrary to article 14 of the ECHR; or that it is irrational and therefore unlawful on common law principles. They have set themselves a difficult task. It may well be possible to show that the application of the Rule in an individual case is incompatible with the Convention rights of a British partner, as happened in the case of a different marriage rule in R (Aguilar Quila) v Secretary of State for the Home Department (AIRE Centre intervening) [2011] UKSC 45, [2012] 1 AC 621. It is much harder to show that the Rule itself is inevitably unlawful, whether under the Human Rights Act 1998 or at common law, although this was possible in the case of yet another marriage rule, in R (Baiai) v Secretary of State for the Home Department (Joint Council for the Welfare of Immigrants intervening) (Nos 1 and 2) [2008] UKHL 53, [2009] AC 287. It is not surprising, therefore, that Beatson J concluded that the fact that it might be possible to argue that the operation of the Rule was a disproportionate infringement of an individual's article 8 rights did not render the Rule itself disproportionate: [2011] EWHC 3370 (Admin), [2012] 2 All ER 653 (sub nom R (Chapti) v Secretary of State for the Home Department (Liberty intervening)), para 115. By a majority, the Court of Appeal reached the same conclusion: [2013] EWCA Civ 322, [2014] 1 WLR 208.
A further difficulty is that things have not stood still since the proceedings were launched in November 2010, since Beatson J reached his decision in December 2011, and since the Court of Appeal reached their decision in April 2013. The Rule itself has stayed much the same, but it has been restated in a new Appendix FM to the Immigration Rules which seeks to deal compendiously with family relationships. More importantly, the guidance to those operating it on the ground has developed as time has gone on. And perhaps most important of all, the facts relating to the accessibility of the required tests were difficult to ascertain and are also subject to change. The discussion of the evidence and arguments, on the one hand by Dr Helena Wray and her colleagues for the appellants, and on the other hand by Mrs Helen Sayeed for the Secretary of State, has to be applied to the situation as it now is rather than as it was in 2011.
The Rule may be set against a background of immigration controls which have traditionally differentiated between so-called "primary" migration, of breadwinners coming here for economic reasons, and "secondary" migration, of spouses, partners and other family members coming to join the breadwinners here. All are expected not to place an undue burden upon the state and its resources. Controls relating to the former look to the work or business from which the migrant intends to support himself; controls relating to the latter look to whether the family has the resources to support itself. A second background feature is that control over the entry of nationals from the European Economic Area and their families is governed by European Union law. The Rule is not concerned with them, even though English will not be the first language for the great majority.
Spouses, partners and intending partners are first given limited leave to enter for a probationary period. Until 2012, this was two years, but it has now been raised to at least the five years which is required of other migrants. At the end of this period, they can apply for indefinite leave to remain ("ILR"). In 2005, applicants for British citizenship were for the first time required to demonstrate "sufficient knowledge of the English language and about life in the United Kingdom" ("KOLL"). In 2007, this post entry requirement was extended to applicants for ILR, including spouses and partners. This can be satisfied by taking the "Life in the UK" test ("LUK"), which requires a considerable level of competence in the English language. An alternative for non-native English speakers was to take a course in English for Speakers of Other Languages ("ESOL"), taught with specified citizenship materials. Since October 2013, however, all applicants for ILR have been required to meet the same specific English language requirement and pass the LUK test.
Such data as we have suggest that the number of spouses and partners failing the settlement test was never high and declined sharply after the first year of its introduction (Equality Impact Assessment, 2010). This is based on the numbers who had to apply for further limited leave to remain because they had failed the test, which are very small when compared with the numbers granted ILR after entering through the family route. The data indicated that a higher proportion of spouses or partners took the ESOL rather than the LUK route to satisfying the requirement. The Secretary of State suggests that this could mean that even after two years in the UK they had not acquired sufficient English to enable them to pass the LUK test. However, migrants coming from non-English-speaking countries are advised to take an ESOL course before attempting a settlement test. So this figure could simply reflect the fact that a higher proportion of spouses and partners come from non-English speaking countries. Having taken an ESOL course with the required citizenship materials, there would be no point in their taking the LUK test instead.
In 2007, the Government first floated the idea of requiring a pre-entry test for foreign spouses and partners, in Securing the UK Border: Our vision and strategy for the future (March 2007). In the chapter on "Wider, tougher checks abroad", under the heading "Targeting areas of abuse", this made suggestions about "Marriage to partners from overseas—protection for the vulnerable and the skills to integrate" (para 3.22). Alongside suggestions aimed at deterring or preventing forced marriages was a proposal to examine the case for introducing a new requirement to pass some form of English test before arrival. This was soon followed by a consultation paper, Marriage Visas: Pre-Entry English Requirement for Spouses (December, 2007), published alongside a separate consultation paper, Marriage to Partners from Overseas, which dealt with proposals to combat forced marriages (the subject of this court's decision in Aguilar Quila). The key objectives of introducing a pre-entry English requirement for spouses were said to be (para 1.11):
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• To assist the spouse's integration into British society at an early stage;
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• To improve employment chances for those who have access to the labour market;
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• To raise awareness of the importance of language and to prepare for the tests they will need to pass for settlement.
In July 2008, the Government published Marriage Visas: The Way Forward, which dealt with the mainly negative response to both consultation papers. Opponents cited the difficulties of accessing English language lessons overseas, the interference with the right to respect for family life and individual human rights, and the view that English was best learned in the United Kingdom (paras 2.14–2.16). Nevertheless, the Government had decided upon the "medium term goal" of introducing an English test for spouses before they arrived here. The three stated objectives remained the same (paras 1.4, 2.2); although respondents who favoured the proposal also suggested that it would reduce the cost of translation services in the UK and bring potential benefits to spouses of improved employment opportunities, freeing them from being tied to home and family (para 2.17). But the Government decided that it would move towards this goal over a period of time (para 2.3):
"This is simply because there is not currently sufficient access to English language classes overseas, especially in rural areas, and to introduce the requirement in a...
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