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Earlier this week, five London justices in the Supreme Court led by Lord Neuberger unanimously ruled that the requirement for spouses to speak English prior to entering the UK was to stay in place. Despite being urged to find the rule, which has been in place since 2010, “unreasonable” and “discriminatory”, the panel dismissed the appeal.
The appeal had been brought by two women, both of them English citizens, who were claiming that a decision not to let their husbands join them in the UK on the basis of the English language requirement was in breach of Article 8 – the right to a private and family life – of the European Convention on Human Rights (ECHR). Saiqa Bibi and Saffana Ali, whose husbands cannot speak English, were both left disappointed when their appeal was dismissed on the basis that the original decision didn’t infringe upon their rights.
This judgement comes as little surprise, as it follows on from earlier rulings in the High Court and Court of Appeal that have also found that upholding the pre-entry requirement to speak the language does not disproportionately interfere with family life in the cases that have arisen. In this particular judgement, though, the panel did offer some hope for future appeals. They asked for further submissions from each party to determine whether they should declare that following the guidance in the way that it is currently outlined could potentially be incompatible with Article 8 of the ECHR in certain cases.
After suggesting that, whilst it doesn’t in this case, the guidance is at high risk of infringing upon Article 8 at some point in the future if it were to remain in its current form, one of the justices made a further suggestion that the guidance may need to be “recast” in order to grant exemptions to the rule where compliance with it was ‘impracticable’. The rule itself, however, was deemed not to be disproportionate and, as such, it remains slightly unclear as to the course of action.
Until the Immigration Rules were amended in 2010, UK law only required the spouse of a British citizen to pass the English language requirement after having been in the UK as a resident for two years on a spouse visa. Post amendment, they are now required to take the test prior to entry being granted.
Ms Bibi and Ms Ali are nationals of Pakistan and Yemen, respectively, and part of the evidence centred upon the closest approved test centres to administer the English language requirement and tuition in the lead up to the test. In both cases, the closest approved test centres were a minimum of 70 miles away from where they are residing.