Barriers to entry: spouses’ English tests upheld

Language is the commonest human currency and it has an historical connection to culture and politics. Ostensibly, English remains the lingua franca of the world. Yet its imposition upon people – often far away in a Gujarati, Punjabi or Yemeni town or village – in order to allow them to join their spouse in the UK is synonymous with cultural imperialism. Considering that the majority of developing countries’ populations are illiterate, the expectation that a grown up person, or someone in old age, can learn English to come to the UK to cohabit seems utterly arbitrary, discriminatory and unfair.

Such arguments, however, could not convince Birmingham’s High Court in R (Chapti & Ors) v SSHD [2011] EWHC 3370 (Admin), a test case where Mr Justice Beatson found that the aims of the pre-entry English language tests (set at level A1 of the Common European Framework for Referencing) for spouses contained in immigration rule 281 – and like requirements for civil partners, fiancé(e)s, proposed civil partners, unmarried and same sex partners – were “fundamentally benign” (at paragraph 88). The tests (or the “new rule”), which are for speaking and listening, were introduced into the immigration rules through Statement of changes in immigration rules Cm 7944 in 2010.

Under the rules exemptions exist for applicants (a) aged 65 or above; (b) with a physical or mental condition; (c) with exceptional compassionate circumstances; (d) from certain English speaking countries; (e) with acceptable foreign academic qualifications (confirmed by NARIC); and (f) from the 30 or so countries without test centres – “automatically” satisfying point (e).

It is noteworthy (at paragraph 55) that a Pakistani woman whose gunshot wounds to the head resulted in partial paralysis and no speech could exceptionally qualify under “exceptional compassionate circumstances” only when assisted by a verifiable genuine medical report, whereas other applicants in similar predicaments without “genuine verifiable documents” had less luck because their applications were refused!

The decision sits uncomfortably with the UK’s thriving immigrant community and organisations such as Liberty and JCWI – which intervened in the case. Despite his avuncular (and in places inflexible) judgment, Beatson J granted the claimants permission to appeal.

The three claimants brought judicial review proceedings against the home secretary on the grounds that the tests violated their Convention rights by disproportionately breaching their Article 8 rights to a family life and the right to marry under Article 12. Equally, it was claimed that the requirement was discriminatory and Article 14 was therefore also engaged. Moreover, the claimants raised irrationality but the home secretary saw the measure as facilitating integration.

No matter what the pros of the debate might be, the rule will inevitably prejudice the poor more than the rich because the tests cost money and learning English abroad is not cheap. Moreover, test centres are not universally available. Yet in the home secretary’s view the interference with the claimants’ Article 8 rights was proportionate because the UK was not obliged to respect the choice of the claimants’ country of matrimonial residence.

In the oral hearing in July, Beatson J agreed to give his judgment after the UK Supreme Court handed down judgment in R (Quila) v SSHD [2011] UKSC 45 so as to allow the parties to make written submissions on its implications for the three claimants.

In addition to the above grounds the claimants, relying on the CJEU’s decision in C-34/09 Ruiz Zambrano, also raised discrimination – in comparison with Union citizens’ spouses (who are excluded from the requirement’s ambit) – but the home secretary riposted this by citing C-434/09 McCarthy and submitted that where a British citizen’s spouse’s right of free movement had not been exercised no obligation to grant immigration status was owed. The parties agreed to postpone proceedings on the EU ground until a more propitious moment in the ongoing case of Bhavyesh CO/4526/2011.

Just a glance at paragraphs 24 – 27 of Beatson J’s judgment reveals the horrific circumstances which Gujarati applicants for entry clearance routinely face. Mrs Chapti, a British Overseas citizen who was subsequently naturalised as a British citizen and who married in 1976, repeatedly battled the authorities to reunite her family. Failing to get entry clearance for her husband in 2007, Mrs Chapti abandoned the appeal and her husband and son reapplied in late 2009; the applications were refused again (on maintenance grounds).

Upon appeal an Immigration Judge added insult to injury by finding the Chaptis’ subsisting marriage to be legally invalid and remarked that outside of a Gujarati environment Mr Chapti would be unable to work in the UK because he spoke no English: the case is presently in Upper Tribunal proceedings. (It is usual for people from India, especially Gujarat, to suffer terrible immigration problems and spend large sums of money in trying to join their loved ones in the UK: hence proceedings in immigration tribunals are routine for most families.) Judicial review proceedings were nevertheless taken because Mr Chapti would not be able to satisfy the requirement without which the fee for his application (£810) would be wasted.

The second claimant Mrs Ali’s husband hails from Yemen where there are no test centres. Mr Ali is illiterate and his prospects of learning English are gloomy. The test’s online delivery precludes Mr Ali from taking it because he possesses no computer skills. Furthermore, his poverty marginalises his chances to acquire training to overcome his problems and hence Mrs Ali is forced to live in Yemen in order to enjoy her family life.

The third claimant – a British woman with a Pakistani husband named Mr Jehangir (who although literate in Urdu is unable to speak English) – found it impracticable to have to relocate with her child to Pakistan. Moreover, costs of Rs 300,000 (or £2,000) would be incurred in the event Mr Jehangir moved from Kotli to Islamabad or Mirpur to prepare for the test.

Large chunks of Beatson J’s judgment, see paragraphs 33 to 55, remain devoted to the Home Office’s Equality Impact Assessments and Impact Assessments: the regurgitation of which bolsters arguments in favour of the tests by pointing to countries such as the Netherlands, Germany, Denmark and France. (Which all either have or contemplate pre-entry language requirements.)

The integration argument, however, off sets the financial one. Beatson J’s appraisal of Home Office information highlights that half of the costs of the tests will be borne by UK residents, but in the long run the measure will reduce translation costs across government by hundreds of millions of pounds. With respect to Article 8 the government’s materials intimated that breaches connected therewith were mitigated by the allowance to grant discretionary leave and exemptions (set out above).

However, the court remained unconvinced by the government’s contention that the claimants raised an “abstract challenge” which could only succeed if the results of an amended rule 281 inevitably breached Convention rights (paragraphs 56 – 57). Alternatively, Beatson J prioritised Lady Hale’s comments in Quila where she (at paragraph 61) took the view that while adjudicating breaches of Convention rights “appropriate respect” must be accorded to the home secretary’s pursuance of her duties. Similarly Lord Brown’s dissent (at paragraph 91) in Quila was used to make the point that a “particular need” existed to “accord government an area of discretionary judgment” in circumstances where the court considered the striking down of an immigration rule as opposed to a decision.

After hearing submissions on whether Article 12 was engaged Beatson J (at paragraph 63) distanced himself from Sedley LJ’s observation in Quila that Articles 8 and 12 ought to be considered together (“not merely to go through a ceremony of marriage, but to make reality of it by living together”).

Instead Beatson J leaned towards Lady Hale and Lord Wilson’s conclusions in Quila that the right to marry had not been violated in that case. Equally, differences between judges within the Court of Appeal’s judgment in Quila – in contrast to Sedley LJ, Pitchford LJ for e.g., considered Article 12 “to have no life of its own” and Gross LJ thought it had “no material bearing” – and the fact that the approach taken by the Supreme Court upon appeal did not undermine Abdulaziz v UK sufficiently to uphold Sedley LJ’s earlier generosity (see above) informed Beatson J’s rationale.

In ascertaining whether Article 8 was engaged Beatson J, on the one hand (at paragraphs 66 – 73), alluded to the bits of Abdulaziz which survived Quila – such as (i) the irrelevance of couples’ choice of country for matrimonial residence; (ii) width of states’ margin of appreciation – and then, on the other hand, he went on to explain that even pre-Quila case law precluded states from hampering family life to later claim its disengagement. The court noted that Mrs Shakira Bibi, the second Quila claimant (wife of Suhyal Muhammed) had never enjoyed a family life in the UK but the Supreme Court found that Article 8 was nevertheless engaged.

Rejecting the submission that the tests were contrary to the home secretary’s duty towards children (at paragraph 75) Beatson J – citing (i) economic well being; (ii) public safety; (iii) health; and (iv) the protection of the rights of others – also found that there was justification for the interference caused because it “pursued a legitimate aim”. The judge also pointed to decision BVerwG 1 C 8.09 where Germany’s Federal Administrative Court (Bundesverwaltungsgericht) had arrived at a similar conclusion in relation to pre-entry linguistic requirements.

Following Lord Wilson’s approach in Quila (at paragraph 49) in assessing proportionality Beatson J (at paragraph 81) developed nine questions which gauged the issues in Chapti. The questions investigated but were not limited to the (a) advantages of learning English pre-entry; (b) protection of public services; (c) success rates and number of applications for entry clearance; (d) quality and accessibility of test facilities; (e) information about and implications of the exemptions; and (f) time required for someone to learn English and its impact on interference.

In light of the parties’ evidence the court concluded (at paragraph 115) that the pre-entry English language requirement was not a disproportionate interference with family life and was justified.

In dismissing the three applications for judicial review the court’s conclusions (at paragraph 148) were:

  • The new rule does not interfere with the Article 12 rights of the claimants: see paragraph 65.
  • Article 8 is engaged in this case. The new rule impacted on the Article 8 rights of the claimants; see paragraph 71.
  • The aims of the new rule, to promote integration and to protect public services, are legitimate aims within Article 8(2): paragraphs 84 – 85.
  • Taking into account all the material before the court, in particular the exceptions to it, the new rule is not a disproportionate interference with family life and is justified: see paragraphs 87 – 115. The fact that it may, in an individual case, be possible to argue that the operation of the exceptions in the way envisaged in the evidence adduced on behalf of the home secretary is a disproportionate infringement of that individual’s Article 8 rights, does not render the rule itself disproportionate.
  • As to discrimination contrary to Article 14 when read with Article 8, the exemptions based on nationality are not direct discrimination based on nationality. This is because the “bright line” drawn between countries considered to be “English-speaking countries” and those which are not is (see paragraphs 132 – 133) a rational one, and accordingly those who are exempt are not in a relevantly similar situation to those who are not exempt: see paragraph 138.
  • The new rule does not indirectly discriminate on the ground of nationality, ethnic origins or disability: see paragraphs 141 – 143. For the reasons given at paragraph 140, in the case of the allegation of indirect gender discrimination no determination was made.

Not long ago following Foucault and Derrida, the redoubtable Professor Edward Said (1935 – 2003), famously analysed the historic imposition of western standards on Africans, Asians and others as Orientalism. For Said, a Palestinian teaching in New York’s Columbia University – who was massively criticised by the likes of Albert Hourani, Bernard Lewis and even the comparatively moderate Ernest Gellner – Orientalism was a “method of discrimination” and “a tool of domination”.

This blog can only wonder what the late Professor Said would make of the pre-entry language tests? Although the claimants described the government’s prejudice as “anecdotal stereotyping”, it is in fact Orientalism and cultural imperialism. This position is further strengthened by the fact that people who this blog knows to be educated to a bachelor’s degree taught in English (and who opted to take the level 1 CEFR test rather than get a NARIC certification) have reported the tests as being quite “hard”.

It should be noted that in addition to linguistic exclusion the authorities are keen to erect further economic barriers. The Migration Advisory Committee (MAC) – which sits in Marsham Street and is headed by Professor David Metcalf – believes that sponsors ought to exhibit much greater support for their spouses prior to their admission to the UK. To this end MAC has suggested a “minimum gross income figure to support a two-adult family of between £18,600 and £25,700”. MAC’s full report entitled Review of the minimum income requirement for sponsorship under the family migration route is available here.

Given the speed with which the coalition government has changed the immigration system over the past year-and-a-half, it is just a matter of time before the contentious new income related thresholds – regulating the entry of spouses and similar persons – are introduced. (Cases which arise from the introduction of such rules will give rise to increasingly difficult proceedings: complex immigration cases just pouring out of the courts like water, it’s just impossible to read them all!)

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 12, Article 14, Article 8, Cases, English Tests, Human Rights, Immigration Rules, s 55 BCIA and tagged , , , , , . Bookmark the permalink.

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