New English language requirements under the immigration rules

Through the statement of changes called CM7944 the Secretary of State for the Home Department (SSHD/Home Secretary) has introduced some new requirements for the purposes of the immigration rules in relation to spouses and civil partners. The key new requirement introduced relates to the English speaking and listening ability of such dependants.

Originally, prior to the 6 May 2010 General Election, the Labour government had scheduled the introduction of this requirement in autumn of 2011. However, the new Coalition government has expedited the new rule and the English language requirements for spouses, civil partners, and fiancées will come in force on 29 November 2010. The requirement will be necessary in relation to speaking and listening and not reading and writing.

In relation to applications made for leave to remain before 22 October 2010, if the application has not been decided before that date it will be decided in accordance with the rules as they were in force on 21 October 2010. However, if the application is made and “the application has not been decided before 29 November 2010 it will be decided in accordance with the Rules in force on 28 November 2010.”

It seems that here the UKBA has a wide discretion in applying the latter version of the rules which mandate the English language requirement. If my understanding of the statement of changes is right then some confusion should arise in relation to the applications which were decided prior to the change in the law.

The Home Secretary, Theresa May, stated on 9 June 2010 that the new measure would “help promote integration”. However, the new rules, which require a person to have command of English to the level “of a five to seven-year-old”, will inevitably discriminate against some of the world’s poorest people. Since the law does not apply to EU citizens or the citizens of those countries such as America, Australia, and Canada, the people who will be most affected by the changes are South Asians (Indians, Pakistanis, and Bangladeshis).

In the interim period, the introduction of the English requirement, has lead to a flurry of people acting urgently in making applications as spouses and civil partners because they are concerned that they will not be able to pass the English language requirements which are set at level A1 of the Common European Framework for Referencing (CEFR).

In countries where the Visa Facilitation Services (VFS) operate any applications submitted presently should fall into the category to be decided “after 29 November 2010” because a bureaucracy as large as the UKBA and its ancillary partners such as the VFS will no doubt find it convenient to let time pass by until the day the changes are introduced before undertaking any decision making.

Level 1 CEFR it can be argued, and indeed the SSHD will raise this point, only requires a cursory understanding of the European language in question. At level 1 of the CEFR a person should be able to:

“[U]nderstand and use familiar everyday expressions and very basic phrases aimed at the satisfaction of needs of a concrete type. Can introduce him/herself and others and can ask and answer questions about personal details such as where he/she lives, people he/she knows and things he/she has. Can interact in a simple way provided the other person talks slowly and clearly and is prepared to help.”

However, human rights’ campaigners such as Liberty have vowed to challenge the English language requirements under the new rules because they articulate a different view of the matter according to which Asian, South American, or African dependants (who are likely to be villagers) will find it impossible to pass the onerous requirement of satisfying level A1 of the CEFR: easy as it might seem to the Home Secretary. Liberty have already opposed the Life in the UK Test which they presciently point out is a breach of Article 8 of the European Convention on Human Rights (ECHR).

Some exceptions to the rule will exist of course for people who are above 65 years of age. Therefore, the dependant application under rule 317 will remained exempted from the consequences of the changes to the rules. Equally dependants who are of unsound mind will be allowed a similar dispensation and the English language requirement will be waived for them.

It also appears to be the case, and I would be grateful if someone could correct me in the event that I am wrong, that dependants under the Points Based System (PBS) of migration will remain unaffected by the change in the rules.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Article 8, Bangladesh, Cases, Dependants, Immigration Law, Immigration Rules, India, Pakistan, Tier 1, Tier 2, UKBA and tagged , , , , , , , . Bookmark the permalink.

One Response to New English language requirements under the immigration rules

  1. Bob Hutt says:

    After 9 months of waiting for the tribunal Judge to allow my Thai Fiance’s visa, she finally arrived in the UK in september (with our 2 month old baby who’s birth in Thailand I missed), we got married and thought we would have 2 years to get her English up to speed, when she applies to settle; now I suddenly find that we have less than 4 weeks to apply for her 2-year extention (rather than Feb 11 when her 6 month Fiance visa expires) or she will be forced to take a test which she would fail. We thought we had finally found happiness and stability, in spite of the debt after the tribunal, yet it seems the Government and the UKBA have no interest in the well being of a genuine loving family.

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