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More on pre-entry English language challenge


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In his judgment in the case of R (On the Application Of Bhavyesh & Ors) v Secretary of State for the Home Department [2012] EWHC 2789 (Admin) Blake J has dismissed the latest attempt to challenge the requirement that foreign spouses learn English before entering the UK. This challenge is described by the judge as a footnote to the original Chapti judgment by Beatson J and concerns a slightly late attempt to add EU law and gender discrimination challenges to the original case. The new judgment was given on 26 July 2012 but has only just made its way on to BAILII. Many thanks to the eagle-eyed and ever-watchful Adam Wagner of the UK Human Rights Blog for flagging it up.

The shortish judgment makes painful reading, particularly paragraph 50.

Suffice it to say that the EU law argument was comprehensively dismissed in a substantive way. The more interesting gender discrimination argument remains unheard for various reasons, so may live to fight another day. It seems likely that Chapti is making its way to the Court of Appeal so it remains possible that the gender discrimination point might somehow be admitted at that stage.

The same solicitors as acted in this case are understood to be behind a test case challenge to the new Article 8 immigration rules.

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The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.


5 Responses

  1. Whats the latest on the test case challenge to the new Article 8 immigration rules, is this to do with the 18,600 requirement or is it something else?

  2. Germany and Denmark have had a language requirement for spouse visas for longer than the UK (and there are others).

    I’m still hoping someone from somewhere in Europe takes the matter the the ECtHR.

    The argument being that it’s a violation of Article 8 if spouses need to be apart just because the applicant needs to learn the language and pass a test. Especially given that in some places in some countries this is unreasonable due to a lack of accessible and/or affordable courses. Doubtless lawyers can present more and better arguments than me.

    Ideally the Strasboug court would throw out the requirement and some conservatives would no doubt howl and scream but it would be a great step forward for many applicants. Much easier and fairer to lean the language on arrival, especially with the spouse and others there to help.

  3. @ Mutly

    No doubt there are people more qualified than me to comment on this but the original Chapti case discussed the issue of immigration control, language tests and Article 8:

    The breadth of the aims expressly identified in Article 8(2) mean that many more specific aims will fall within them and be capable of justifying an interference with a person’s Article 8 rights. In Quila the aim of deterring forced marriages fell into the last of the Article 8(2) categories, “the protection of the rights and freedoms of others”. In the present case the categories of protection of “economic wellbeing” (in view of the evidence about the impact on job prospects), “health” (in view of the evidence about accessing health services), and possibly “public safety” or the “protection of the rights and freedoms of others” (in view of the evidence about the protection of women from domestic violence) mean that the new requirement does pursue a legitimate public aim.

    It is also noteworthy to observe in considering whether the aims of the new rule are legitimate the decision dated 30 March 2010 of the First Division of the German Federal Administrative Court, the highest German court in administrative matters. The three judge court, presided over by the court’s Chief Justice, held that “requiring a basic knowledge of the language even before entering the country is fundamentally compatible with the special protection that marriage and the family enjoy under Article 6 of [the German Constitution], [and] Article 8 of the European Convention on Human Rights

    The ECHR may take a different view, of course but considering recent political controversies over its alleged expansive tendencies the judges may well fall back on the ‘margin of discretion’ justification.

    1. Thanks for the info European Citizen. The Chapti case is interesting albeit disappointing. I wasn’t aware of it.

      I’m vaguely familiar with the German case and there was a case where the consitutional court declined to hear an appeal on Germany’s A1 rule but there is potential for another attempt because of the narrow grounds advanced when seeking to have the case considered last time.

      I speak German and have some knowledge of German immigration law but am not an expert and not legally qualified there either, so others will know more than me on the details of that and of course none of my post is gospel.

      But on the one hand, parents of German minors don’t face a language test and it would be unconstitutional to require one. The logic is that any resulting temporary separation of parent and child would be a more severe and therefore not allowable interference to the child’s rights than would the temporary separation of two adult spouses. (Third country citizens with a German spouse and child are free to choose whether to apply based on the child or the spouse, rules for settled status after three years are the same.)

      On the other hand, the UK courts have gone further as regards application of the ECHR in some immigration areas. Overstayers can’t get married, if they already are married, or become a parent, they often won’t get status in-country. There is no provision for a grant based on long residence/private life, or an extension on this basis where the conditions of the rules themselves aren’t met.

      So it’s interesting and unfortunate that the UK court looked at the rationale in the German case.

      At least in many countries knowledge of English and availability of lessons is far more common than German and other languages.