Rules – Amendment being made – Immigration Rules imposing pre-entry English language test for foreign spouses and partners of British citizens or persons settled in UK
R (on the application of Bibi and another v Secretary of State for the Home Department (Liberty and Joint Council for the Welfare of Immigrants, intervening): Court of Appeal, Civil Division: 12 April 2013
In November 2010, rule 281 (the rule) of the Immigration Rules HC 395 was amended to require a foreign spouse or partner of a British citizen or person settled in the UK to produce a test certificate of knowledge of the English language to a prescribed standard prior to entering the UK (the amendment). The rule contained a number of exemptions, including for nationals of majority English-speaking countries and those in respect of whom there were exceptional compassionate circumstances.
The first claimant was a citizen and resident of Pakistan. He was educated in Urdu and lived in Kolti where there was no approved test centre. Commuting to his nearest test centre would not be practicable and he could not afford to relocate for six months. He would also have needed to learn computer skills for the test. The second claimant was a national of Yemen and lived in that country. He had no formal education and was illiterate. He would have found it very difficult to learn English and would have needed to learn computer skills for the test. He also could not afford the fees involved. Both claimants were married to British citizens.
The claimants sought to challenge lawfulness the amendment by reference to articles 8, 12 and 14 of the European Convention on Human Rights. Neither claimant had made an application for entry clearance as they believed that they would have been unable to satisfy the rule as amended. In the High Court, the judge considered the cases as matters of principle in the context of challenges to the lawfulness of the amendment. The applications for judicial review were dismissed. The claimants appealed.
The principal issues that fell to be determined were: (i) whether the amendments amounted to an interference with the right to respect for family life within the meaning of article 8.1 of the convention; (ii) if so, whether the defendant secretary of state could justify that interference in accordance with article 8.2 of the convention; and (iii) whether any difference in treatment between the exempt and non-exempt nationalities had an objective, reasonable and proportionate justification. The appeal would be dismissed (Sir David Keene dissenting). It was established law that a wide margin of appreciation was usually allowed to the State under the convention when it came to general measures of economic or social strategy (see  of the judgment).
In the circumstances, the interference was sufficient to call for justification. The interference was in accordance with the applicable immigration law and rules and the amendment to the rule had been made in pursuit of legitimate aims. In respect of proportionality, it was clear that the judge had not only set out the correct approach, but that he had also adhered to it. In the instant case, there was no reason or contrary authority to prevent the secretary of state from being afforded a wide margin of appreciation.
She had identified a social problem which might be described as an impediment to integration. A great deal of consideration had been given to the implications of a change to pre-entry testing. Applying the wide margin of appreciation that was appropriate, the judge had been right to conclude that the move to a pre-entry requirement had been proportionate. Further, the judge had been correct to conclude that any difference in treatment between the exempt and the non-exempt nationalities had an objective, reasonable and proportionate justification (see , , , , , , , ,  of the judgment).
R (on the application of Aguilar Quila) v Secretary of State for the Home Department; R (on the application of Bibi) v same  1 All ER 1011 distinguished; Abdulaziz, Cabales and Balkandali v United Kingdom (Applications 9214/80, 9473/81, 9474/81)  7 EHRR 471 considered; De Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing  1 AC 69 considered; R (on the application of Razgar) v Secretary of State for the Home Department  3 All ER 821 considered; Stec v United Kingdom (Applications 65731/01 and 65900/01)  All ER (D) 215 (Apr) considered; Huang v Secretary of State for the Home Department; Kasmiri v Secretary of State for the Home Department  4 All ER 15 considered; R (on the application of SB) v Governors of Denbigh High School  1 AC 100 considered; Carson v United Kingdom (Application No 42184/05) (2010) 29 BHRC 22 considered.
Per curiam: 'It is of course possible that in an individual case, with favourable facts found, a particular applicant might be able successfully to invoke article 8 or some other protection (for example, section 55 of the Borders, Citizenship and Immigration Act 2009).' (see  of the judgment). Decision of Beatson J  2 All ER 653 affirmed.
Manjit S Gill QC and Tony Muman (instructed by J M Wilson Solicitors LLP) for the first claimant; Ramby de Mello and Abid Mahmood (instructed by Fountain Solicitors) for the second claimant; James Eadie QC and Christopher Staker (instructed by the Treasury Solicitor) for the secretary of state; Karon Monaghan QC (instructed by Liberty) for the first intervener; Shahram Taghavi (instructed by Charles Russell LLP) for the second intervener.