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Pre entry English tests upheld


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In a substantial judgment running to 149 paragraphs Mr Justice Beatson sitting in the High Court has rejected a challenge to the rule requiring spouses to attain a certain level of English before entry. The case is R (Chapti and Others) v Secretary of State for the Home Department [2011] EWHC 3370 (Admin).

I’ll try and come back to this later and revise the post, but am short on time right now. The challenge seems to have been framed very much as a challenge to the Immigration Rules themselves rather than to the effect in the particular cases. The summary of conclusions at paragraph 148 of the judgment is as follows:

(a) The new rule does not interfere with the Article 12 rights of the claimants: see [65];

(b) Article 8 is engaged in this case: the new rule impacted on the Article 8 rights of the claimants: see [71];

(c) The aims of the new rule, to promote integration and to protect public services, are legitimate aims within Article 8(2): see [84] – [85];

(d) Taking into account all the material before the court, in particular the exceptions to it, the new rule is not a disproportionate interference with family life and is justified: see [87] – [115]. The fact that it may, in an individual case, be possible to argue that the operation of the exceptions in the way envisaged in the evidence adduced on behalf of the Home Secretary is a disproportionate infringement of that individual’s Article 8 rights, does not render the rule itself disproportionate;

(e) As to discrimination contrary to Article 14 when read with Article 8, the exemptions based on nationality are not direct discrimination based on nationality. This is because the “bright line” drawn between countries considered to be “English-speaking countries” and those which are not is (see [132]- [133]) a rational one, and accordingly those who are exempt are not in a relevantly similar situation to those who are not exempt: see [138];

(f) The new rule does not indirectly discriminate on the ground of nationality, ethnic origins or disability: see [141] – [143]. For the reasons given at [140], in the case of the allegation of indirect gender discrimination, I have made no determination.

The door is still open to succeeding in individual cases where it can be shown the interference is disproportionate. For example, I recently acted for someone who had entered the UK long before the new rule was introduced. She was illiterate in her own original language and although she could speak English quite well she could not read well enough to take the speaking and listening tests – which are conducted in writing! Her appeal succeeded.

In any event, an appeal in the Chapti case is inevitable. Remember, Quila failed at first instance.

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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.


3 Responses

  1. Quite a disappointing judgement. I haven’t read the whole judgement (thanks for the link, FM) but I wonder how the “protection of public services” argument sits with the maintenance and accommodation requirement (paragraph 97 is somewhat related but not quite what I’m getting at).
    I’m afraid the decision would just open the door to the introduction of a number of other hurdles, all in the name of the new legitimate aim of “promoting integration”.

  2. An unfortunate decision, especially for those who will be temporarily separated and/or face extreme difficulties just because of this requirement, despite a genuine marriage and the possibility of learning English between entry and ILR.

    The issue of language requirements prior to entry is a controversial one in some other European countries too.

    It is probably a matter of time before the matter comes before the Strasbourg Court itself, whether the appeal be from this case, another UK case or another Council of Europe member state.

  3. “the new rule is not a disproportionate interference with family life and is justified”

    This, to me, is the key philosophical error by the judge. Perhaps if we forceably separated the judge from their spouse for a significant period of time, empathy might ensue.

    Legally the point is weak at best, wrong at worst.

    I agree with Mutly and EC, disappointing/unfortunate.

    I can see this rule being withdrawn, but whether it will take years like COA, or months like Quila, I’m not sure.