Last week the Supreme Court delivered its long awaited judgment in the case of R (on the applications of Ali and Bibi) v Secretary of State for the Home Department [2015] UKSC 68. The appellants in this case tried to challenge the 2010 change in the Immigration Rules requiring spouses or partners of British citizens and persons settled in the UK to pass an English language test before they can come to live in the UK in the category of spouse or partner.
The main basis of the challenge was that the requirement interferes with the right to respect for private and family life enshrined in article 8 of the European Convention on Human Rights (ECHR).
The Supreme Court unanimously upheld the requirement for spouses and partners to demonstrate their English language ability as lawful on the basis that it is a proportionate interference by the state. The Court found that the aim of the Rule was legitimate and sufficiently important to justify interference with the article 8 right.
Although the judges unanimously agreed to uphold the Rule as lawful they invited parties to the case to make further submissions on the question of whether the present application of the Home Office Guidance accompanying the Rule is incompatible with the rights of individuals where compliance with it is simply impracticable. 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. The current Guidance makes it clear that exceptional circumstances will rarely arise and do not include financial reasons or lack of literacy. Some of the judges criticised the Guidance as very restrictive and suggested that it may be unlawful because of this. It remains to be seen what the Court’s ultimate decision will be following the further submissions in respect of the Guidance.
If, indeed, after receiving further submissions, the Court declares the Guidance unlawful, this may mitigate the more draconian effects of the Rule, for instance for those who live in remote areas of the Indian sub-continent who would need to relocate in order to obtain English language tuition. If the Guidance is eventually changed we will need to wait and see as to what exceptions they would cater for and how far the discretion is going to be exercised.