• All Articles
• Working for UK Employees
• HSMP
• Business and Investing
• European union
• UK Employers
• Students
• Family Immigration
• Settlement
• Nationality
• Human Rights
• Asylum
• Visa Services
• Send us an enquiry

• Home
• » News & Articles
• » Challenge to language requirement for marriage visas fails in High Court

Challenge to language requirement for marriage visas fails in High Court

4 January 2012

By Immigration Rules which came into force in November of 2010, people who wish to apply for visas to come to the United Kingdom (UK) to join their spouses or partners who live here must show that they have a knowledge of the English language to a standard prescribed in the Rules.

Nationals of countries designated in the Rules as "Majority English-speaking” are exempt from this requirement, as are those who have qualifications equivalent to a UK degree if the teaching had been done in English.

The Rule change was introduced by the Labour government before it lost the May 2010 general election. It was intended that it would be implemented in the summer of last year (2011), but one of the first immigration measures undertaken by the new coalition government was to bring forward the implementation of the language requirement for entry clearance.

Before the change the regime was "if you’re going to stay here you’ve got to integrate” and since 2007 the Immigration Rules have required those who have completed two years’ leave to remain in the UK as a spouse or partner and wish to apply for indefinite leave to remain to show that they have sufficient knowledge of language and life in the UK. This is done by passing the "Life in the UK” test.

In R (on the application of Chapti and others) v Secretary of State for the Home Department [2011] EWHC 3370 the imposition of this English language requirement was challenged on the basis that it was contrary both to Article 12 (the right to marry) and to Article 8 (the right to respect for family life) of the European Convention on Human Rights (ECHR) as well as being discriminatory and therefore a breach of Article 14.

The significance of the challenge is clear from the Claimants’ submission that large numbers of applicants for spouse visas would find it difficult or impossible in practice to satisfy the visa Rule in its amended form, and in May of 2011 the Court permitted the Joint Council for the Welfare of Immigrants to intervene. Submissions were also made by the human rights group Liberty.

In a long judgment Mr Justice Beatson has rejected the Claimants’ applications for judicial review.

First of all, the Judge found that the new Rule had no effect upon the absolute right to marry protected by Article 12 of the ECHR. The amendment did not prevent people from marrying either in the UK or in the country from which entry clearance would be sought.

In the Judge’s view, it was Article 8 which was the relevant Article of the ECHR concerning a couple’s right to live together in a particular country. Unlike Article 12, Article 8 is of course not an absolute right, and states are entitled to violate it by the measures they adopt provided that those measures are justified in accordance with Article 8 (2).

So far as Article 8 (1) was concerned the Judge rejected the Secretary of State’s submission that the Article was not even engaged by the amendment to the Immigration Rule. In this respect, the Secretary of State was relying on the proposition that a couple which has not lived together has not established family life and that therefore there is nothing with which to "interfere”. In the Judge’s view it was now beyond argument, following the Supreme Court’s judgment last October in Quila and Bibi v Secretary of State for the Home Department [2011] UKSC 45, that Article 8 could be violated as much where the positive obligations imposed on a State by Article 8 were not met as it could be where there was a breach of a "negative” obligation not to interfere with extant family life.

Since Article 8 was engaged it fell to the Secretary of State to justify the violation of the protected right. The violation had to be both in pursuance of a legitimate aim and proportionate to the achievement of that aim.

The object of the change in the Rule was said by the Secretary of State to be the promotion of integration into the UK. In order to be a legitimate aim, as is required by Article 8 (2), the violation had to be necessary for one of the reasons listed there, i.e.: "the economic well-being of the country”, "the protection of health or morals”, "public safety” and "the protection of the rights and freedoms of others”.

The Judge said that he was impressed by evidence provided by the Secretary of State to the effect that integration would benefit the economic well-being of the UK due to the ability of those so integrated to have easier access to employment in the UK, that it would achieve better access for them to health care and even that it would meet the public safety aim by providing better protection for the victims of domestic violence who spoke English than for those who did not.

But was the violation in pursuit of this aim or aims proportionate? In the Judge’s view, it could not really be said that an ability to speak English was not advantageous for those seeking to integrate into UK society.

The Judge then examined the evidence provided by the claimants and by the Secretary of State as to how certain groups of people, including the illiterate, the disabled and the poor would be unable to obtain the necessary evidence of passing the prescribed tests. In his view the existence of groups did not indicate that the Rule constituted a disproportionate violation of Article 8 rights. Indeed, the fact that these were exceptions supported the Secretary of State’s submission that the Rule was proportionate.

Despite therefore finding that the Rule could not be struck down on the basis of incompatibility with Article 8, the Judge accepted that there might be individual cases in which the requirement to satisfy the language test did constitute a disproportionate interference with a person’s (or presumably a couple’s) right to respect for family life.

What about discrimination and Article 14? It would appear that since all "Majority English-speaking” countries citizens are exempt from this requirement, the Rule discriminated against people who are not from such countries. Indeed, this seems to have not been disputed by the Secretary of State.

However Article 14 permits states to discriminate if the discrimination is justified. The Judge concluded this issue against the claimants, saying:

"In my judgment, drawing a bright line which puts the nationals of English-speaking countries and those with educational qualifications that were taught in English or obtained from institutions in English-speaking countries in one category, and others in a different category, is, in the light of the aim of the test, rational.”

People migrate to work in other countries or to seek a new life free from persecution but also in order to live with their family members. Many families will not be able to live together as a result of the survival of the Immigration Rule because of this judgment. It seems unlikely however that the case will end in the High Court. Indeed, because of the fundamental human rights issues it raises it looks set to be appealed all the way to the European Court of Human Rights.