The Supreme Court has dismissed the challenge brought against the introduction of pre-entry English language testing for spouses seeking to enter the UK as the family members of British citizens and those present and settled in the UK. The formal title of the case is R (on the applications of Ali and Bibi) v Secretary of State for the Home Department [2015] UKSC 68 but is will be known generally as just Ali and Bibi.

Although the English language rule is upheld as being lawful, the judgment suggests that the Home Office guidance on when exceptions should be made to the rule may be unlawful because it is so restrictive. Further submissions were invited by the Court from the parties on whether such a declaration should be made, so we will need to wait and see what happens on that front.

A very helpful press summary has been prepared by the Supreme Court which can be read in full here and which is reproduced below for convenience.

Background to the appeals

The appellants in these cases challenged the validity of an amendment to the Immigration Rules in 2010 requiring a foreign spouse or partner of a British citizen or person settled in the United Kingdom to pass a test of competence in the English language before coming to live here (rule E-ECP 4.1 and E-LTRP 4.1 in Appendix FM) (‘the Rule’). They argued that the Rule itself 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 (‘EHCR’) and/or is unjustifiably discriminatory in securing the enjoyment that right contrary to article 14, or unlawful by reason of its irrationality.

The Government’s objectives in introducing the pre-entry English requirement for spouses and partners were (a) to assist the spouse or partner’s integration into British society at an early stage, (b) to improve employment chances for those who have access to the labour market, (c) to raise awareness of the importance of language and to prepare for the tests that the spouses or partners would later have to pass to settle indefinitely in the UK, (d) to save translation costs, (e) to benefit any children the couple might have and (f) to reduce the vulnerability of newly arrived spouses, especially women. The Rule requires spouses and partners to show the ability to speak English at a basic level by passing a test with an approved test provider unless exceptional circumstances are shown. Guidance accompanying the Rule makes it clear that exceptional circumstances will rarely arise and do not include financial reasons or lack of literacy.

The appellants are UK citizens who have been married to foreigners since 2009 and 2010 respectively. Their husbands are unable to satisfy the pre-entry language requirement, in Saiqa Bibi’s case because he would have to relocate to Rawalpindi in Pakistan for several months, which is not affordable, and in Mrs Ali’s case because there is no test centre in the Yemen where they have had to live.

The High Court held that the Rule itself was not unlawful. The Court of Appeal by a majority upheld the High Court’s decision.

Judgment

The Supreme Court unanimously dismisses the appeal in respect of the finding that the Rule itself does not infringe article 8, but it invites further submissions from the parties on whether a declaration should be made that the operation of the Guidance in its present form is incompatible with article 8 rights where compliance with the requirement is impracticable. Three justices give substantive judgments: Lady Hale (with whom Lord Wilson agrees), Lord Hodge (with whom Lord Hughes agrees) and Lord Neuberger.

Reasons for the judgment

The right to respect for family life guaranteed by the ECHR includes the right of married couples to live together, but article 8 does not impose a general obligation on the part of a state to respect the choice by married couples of the country of their matrimonial residence and to accept the non-national spouses for settlement in that country [25-26]. However, interference with the right must still be proportionate, striking a fair balance between the interests of the individuals and the community as a whole [29]:

• The six objectives of the Rule are intended to protect the interests of the economic well-being of the country or perhaps the protection of the rights and freedoms of others. Assisting the spouse or partner’s integration into British society at an early stage is undoubtedly an important and benign aim for which even a basic level of English language skills would be of some benefit. Evidence filed by the appellants casts doubt on the value of the test in getting the learner off to a flying start compared with the opportunities to learn after arrival, but the aim is legitimate and sufficiently important to justify interference with the article 8 right [30-45]
• There is a rational connection between the Rule and the aim it seeks to achieve. It will make a contribution to the overall aim of promoting integration [46]
• The Rule is no more than necessary to achieve this contribution [47-48]
• The impact of the pre-entry language requirement has not been systematically studied by the Secretary of State but it is obvious that at an individual level access to appropriate tuition and a test centre may prove such an obstacle that it amounts to an unjustified interference with their partner’s article 8 rights [50]. However, the problem lies not in the Rule itself but in the restrictive interpretation of exceptional circumstances in the Guidance which means there are likely to be a significant number of cases in which the present practice does not strike the fair balance required by article 8 [53-55].
• The discrimination claim adds nothing to the claim under article 8: the exemption for nationals of Anglophone countries makes sense and direct discrimination on grounds of nationality could be justified under article 14 [56-59].

Accordingly, the Rule itself is not disproportionate. Lady Hale suggests that the appropriate solution to avoid infringements in individual cases would be to recast the Guidance to grant exemptions in cases where compliance with the requirement is simply impracticable, and one remedy might be for the court to declare that the present application of the Guidance is incompatible with the rights of individuals in such circumstances. Since this was not a remedy sought by the appellants the Court should invite further submissions before finally deciding the outcome of the appeal [55, 60].

Lord Hodge agrees that there is no basis for striking down the Rule and that the Guidance may result in a significant number of cases in which the article 8 rights of individuals will be breached, where, for example the cost is inordinate. He is not persuaded that a declaration relating to the Guidance is appropriate but is content to reach a concluded view after further submissions [61-76].

Lord Neuberger agrees that the Guidance seems bound to result in the infringement of article 8 rights in individual cases but that the Rule itself is not disproportionate, bearing in mind the wide measure of discretion which should be accorded to the executive in a case such as this and the research that was done in anticipation [98]. He is sympathetic to the proposed declaration relating to the Guidance but agrees that it would be wrong to make it without considering further submissions [104].

My analysis

The result will be a disappointing one for those affected by the pre-entry English language test rule. It will also cause anxiety to those awaiting the outcome of the minimum income test case, MM, to be heard by the Supreme Court next year. The impact of these cases is profound, as Baroness Hale recognises at paragraph 52:

The interference with the article 8 rights of the British partners of the people who face these obstacles is substantial. They are faced with indefinite separation, either from their chosen partner in life, or from their own country, their family, friends and employment here. It is worth recalling that the interference in Aguilar Quila, which was termed “colossal”, was merely temporary, whereas the interference here may be permanent.

There is some consolation for those affected, though. Although the rule is upheld as being lawful, all five of the judges cast considerable doubt on the lawfulness of the guidance that accompanies the rules. Baroness Hale (with whom Lord Wilson agrees) says:

Given the comparatively modest benefits of the pre-entry requirement, when set against the very substantial practical problems which some will face in meeting it, the only conclusion is that there are likely to be a significant number of cases in which the present practice does not strike a fair balance as required by article 8.

Lord Hodge (with whom Lord Hughes agrees) says on the same issue:

I agree with Lady Hale (a) that there is no basis for striking down rule E-ECP 4.1 in Appendix FM to the Immigration Rules and (b) that the guidance, because of the narrowness of the exceptional circumstances for which it allows, may result in a significant number of cases in which people’s article 8 rights will be breached. To avoid that unfortunate outcome, the Government may need to take further steps toward providing opportunities for spouses and partners to meet the requirement or may need to amend its guidance.

Lord Neuberger:

I have had the benefit of reading in draft the judgments of Lady Hale and Lord Hodge. I agree that these two appeals should be dismissed because rule E-ECP 4.1 in Appendix FM to the Immigration Rules (“the Rule”), set out in paras 12-13 above, is lawful. However, I also agree with them that the guidance (“the Guidance”) contained in para SET 17.9 (updated 15 February 2011) as expanded in the Immigration Directorate Instruction, set out in paras 16-20 above, seems to be bound to result in article 8 rights being infringed on a number of occasions.

The invitation by the Court for further submissions on this issue is a strong indication to the Home Office that the guidance needs changing and widening. Some sort of limited victory may yet be snatched from the jaws of apparent defeat.

There is some disagreement between Baroness Hale and Lord Wilson on one hand and Lords Hodge and Hughes on the other, with Lord Neuberger leaning towards the latter, on how far the guidance may need amending. There seems to be consensus that those living in remote rural areas and who just cannot afford the potentially considerable cost of learning English to the required standard should be granted an exception. There is no such consensus on those who have limited or no literacy or education, however.

Implications for MM on spouse minimum income threshold

The issues of interference with family life that arise in Ali and Bibi are very similar to those arising in MM, the case on the spouse minimum income threshold.

At the outset of the Ali and Bibi judgment, Baroness Hale makes clear the uphill route of challenge chosen by the lawyers for the claimants and draws a pointed contrast with the successful outcome in the case of Quila. In Ali and Bibi, the lawyers decided to challenge the rule itself in abstract rather than a decision made under that rule; the claimants had not even applied in this case, unlike in Quila.

This was a big gamble. The lawyers could have waited, had the clients make applications, waited for a daft, bare and probably obviously unlawful refusal and then challenged it. Any judge would have started from a position of sympathy. Asking a judge to strike down a whole Immigration Rule is rather less likely to induce the same level of sympathy and instead sets up a series of roadblocks for one’s own case.

The gamble may yet pay off, though, IF the guidance ends by being significantly widened. That remains to be seen.

The legal team for MM is essentially the same as in Ali and Bibi and a similar tactic has been adopted in MM: no application has actually been made in MM either. The issues before the court in MM are therefore abstract rather than involving potentially sympathetic facts as in the successful Quila case.

The outcome of MM could end up being similar to Ali and Bibi: the rule upheld but some questioning of the lack of exceptions. In MM, though, there are perhaps stronger arguments than in Ali and Bibi that the hard threshold of £18,600 is more than the minimum interference required to achieve the legitimate aim. On the other hand, the legitimate aim is likely to be given more weight in MM than in Ali and Bibi.

This tactic of challenging the rule itself allows the lawyers to get a leading case to court quickly but does not necessarily encourage a successful outcome for the clients or for others affected by the rule in question.