24 Oct 2016, 59 mins ago

Non-EEA national partners and parents to be required to pass Level A2 English from October to qualify for further leave to remain.

On 18 January the Government announced the introduction of a new English language requirement for family route migrants wanting to extend their stay in the UK.

Under the rules to be introduced, non-EEA national family members (partners and parents) will have to pass an oral and listening test at level A2 in order to qualify for further leave to remain after two-and-a-half years in the UK on the five-year partner/parent route to settlement.

David Cameron has stipulated that migrants who fail the language test after residing for two and a half years in the UK may be required to leave. He says that the new requirement is designed to ensure that those entering the UK on a family visa with only basic English will over time become fluent. However, the imposition of the test upon those already here clearly raises concerns that failing the test may lead to families being forcibly separated. Obviously, this will usually raise appealable issues under Article 8 of the European Convention on Human Rights regarding the right to respect for family life. However, in practice, the new ‘deport first, appeal later’ measures being introduced in the Immigration Bill may make it very difficult to pursue such appeals from in the UK, and could lead to lengthy separation of families seeking to challenge removal if the non-EEA national is unable to pass the test.

The Home Office acknowledges that the required improvement in English will not happen ‘overnight’ and for the need to allow those potentially affected ‘adequate’ time to prepare for the A2 test. For this reason the new A2 requirement will not be brought into force before October 2016. Therefore, migrants who are required to apply for further leave to remain before that date will not be affected. However, the manner in which the change is being introduced is clearly unfair to those with existing leave expiring from October onwards, who in some cases will only be given 8 months in which to improve their English to the required standard. This is in contrast to future new arrivals, who will be aware from the outset that they will need to improve their English to A2 standard and will have a full two-and-a-half years in which to do so.

Historically the Government have introduced 2 language requirement changes -in October 2013, when it was decided that adult migrants applying for settlement (or in other words indefinite leave to remain) should meet level B1 in speaking and listening and pass the Life in the UK test; and in November 2010 when non EEA national partners of British citizens or persons settled in the UK who were applying under the family route were required to demonstrate that they could speak and understand basic English. This requirement was extended in July 2012 to parents of British citizens and persons settled in the UK. The pre-entry English language test rule has recently been found to be compliant with Article 8 ECHR by the Supreme Court in R (on the applications of Ali and Bibi) v SSHD [2015] UKSC 68 (although the Court requested further submissions on whether the Home Office’s Guidance on when exceptions should be made is compatible with Article 8).

To summarise, from October 2016, non-EEA national partners and parents will be required to undertake Level A2 English tests to be able to qualify for further leave to remain in the UK. Those affected need to start planning now how they will meet the requirements of the new rule by the time their leave expires.