Immigrant spouse English language guidance may be too strict: Supreme Court
The requirement in the Immigration Rules on a foreign spouse or partner of a British citizen or person settled in the UK to pass a test of competence in the English language before coming to live here is proportionate to the aim it seeks to achieve, but guidance on the rule may be incompatible with the article 8 Convention rightas it provides very limited scope for exceptions, the UK Supreme Court ruled today.
Five judges dismissed two appeals in cases brought to challenge the rule, introduced in 2010, but invited further submissions on the operation of guidelines as to what may constitute exceptional circumstances to justify exemption from the rule.
The objectives of the rule were (a) to assist 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 the test that has to be passed on a subsequent application 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. It 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.
The guidance makes it clear that exceptional circumstances will rarely arise and do not include financial reasons or lack of literacy.
Lord Neuberger, Lady Hale, Lord Wilson, Lord Hughes and Lord Hodge held that the aim of the rule was legitimate and sufficiently important to justify interference with the article 8 right to private and family life; that there was a rational connection between the rule and the aim it sought to achieve; and that it was no more than necessary to achieve a contribution to promoting the aim of integration.
However it was obvious that at an individual level, access to appropriate tuition and a test centre might prove such an obstacle that it amounted to an unjustified interference with a partner’s article 8 rights. But the problem lay not in the rule itself but in the restrictive interpretation of exceptional circumstances in the guidance, which meant there were likely to be a significant number of cases where compliance with the requirement was simply impracticable and the present practice did not strike the fair balance required by article 8.
It was right to hear further submissions before deciding on the final outcome of the appeal and the form of any declaration to be made.