A Supreme Court panel consisting of Lord Neuberger, Lady Hale, Lord Kerr, Lord Hughes and Lord Hodge looks set to hear Saffna Abdulla Mohammed Ali and Saiqa Bibi’s cases on 25 February 2015. These proceedings originated as a judicial review challenge to the changes to paragraph 281 of the immigration rules which were laid before Parliament in October 2010 and came into effect in late November 2010. The amendment required foreign spouses and partners of British citizens or persons settled in the UK applying for spouse visas to pass pre-entry tests evaluating an applicant’s speaking and listening skills in the English language. Consequently, foreign spouses, who previously had to demonstrate knowledge of English to a prescribed standard two years after entry into the UK, needed to produce a certificate of such knowledge prior to entry. The issue in this case is whether the language tests violate the right to a private and family life under article 8 of the European Convention on Human Rights (ECHR).
There has been no judicial determination of the facts of these cases. Instead, they were considered as matters of principle. At first instance, Beatson J (as he then was) dismissed the claims for judicial review in which Liberty and JCWI expressed an interest. Similarly, the Court of Appeal (Maurice Kay and Toulson LJJ, Sir David Keene dissenting) subsequently upheld Beatson J’s decision by majority. In between these two judgments, Blake J dismissed the claimants’ challenge in relation to discrimination in EU law and on the basis of gender. According to the claimants, rule 281 amounts to an unlawful and disproportionate interference with their and their spouses rights to family life and to marry under article 8 and article 12 ECHR and is also discriminatory on the basis of race, religion and nationality. On the other hand, the Home Office argued that the rule was a justified means to promote integration and protect public services.
Following legal cutover to changes in the immigration rules on 9 July 2012, or the so-called “new rules”, the pre-entry English language requirements came to be detailed in Appendix FM at paragraphs E-ECP.4.1.–E-ECP.4.2. and E-LTRP.4.1.–E-LTRP.4.2. (for partners/spouses) and at paragraphs E-ECPT.4.1.–E-ECPT.4.2. and E-LTRPT.5.1.–E-LTRPT.5.2. (for parents).
The rule does not apply to persons (i) from countries designated by the Home Office as majority English-speaking; (ii) who have an academic qualification equivalent to a UK university degree provided it was taught in English; (iii) aged 65 or over; (iv) with a physical or mental condition that would prevent them from meeting the requirement; and (v) in respect of whom there are “exceptional compassionate circumstances.” Apart from the exceptions, spouses and partners (and parents under Appendix FM) must minimally demonstrate English speaking and listening skills at level A1, i.e. the lowest level, of the Common European Framework of Reference so that they “are equipped to play a full part in British life from the outset.”
Administrative Court (December 2011)
Dismissing the claimants’ challenge to the rules introduced in November 2010 which require most foreign spouses to produce a pre-entry test certificate of basic knowledge of the English language, Beatson J held that the rules themselves were not a breach of any rights protected by the Human Rights Act 1998. In summary, he held that:
- The rule does not interfere with the article 12 rights of the claimants, since it does not prevent marriage within the UK where both parties are present, or prevent anyone within the UK from travelling abroad to get married.
- The rule impacts on the article 8 rights of the claimants, but its aims, to promote integration and to protect public services, are legitimate aims within the meaning of article 8(2).
- Taking into account all the material before the court, including the exceptions to the amended rule, it is not a disproportionate interference with family life. The interference is justified because it is proportionate to the aims of improving immigrants’ job prospects and ability to access health services.
As regards discrimination, the court held that:
- The exemption based on nationality does not constitute direct discrimination because the “bright line” drawn between nationals of countries considered to be “English-speaking countries” and nationals of other countries is a rational one. Accordingly, those who are exempt are not in a relevantly similar situation to those who are not exempt.
- The rule does not indirectly discriminate on the grounds of nationality, ethnic origins or disability.
EU Law Challenge (July 2012)
Also in the Administrative Court, in Bhavyesh and Others, Blake J dismissed a challenge by the claimants (including Ali and Bibi) on grounds that the pre-entry tests amounted to less favourable treatment towards British citizens or their spouses compared with a comparative class by reference to EU law. The court noted that an abstract challenge of this nature required a careful consideration of a comparator class and Blake J, who found the claimants’ preparation to be “depressingly inefficient”, was of the view that:
22. … on the written material provided by the claimants, they had not faced up to an essential dilemma. Either the claimants, as British citizens resident in the United Kingdom, had residence rights by reason of the European Union Treaty, in which case they could be asserted, assessed and, if appropriate, applied in the course of an immigration appeal, or they did not. If they did not have such rights, they could not compare themselves with a class of EU nationals who had such rights.
Court of Appeal (April 2013)
The Court of Appeal thought that benign reform must not be stifled in limine (“at the start/threshold”) and that all immigration law is “inherently discriminatory”. The majority concurred with Beatson J and held that there was an interference but that it was in accordance with the law. But the Court of Appeal nevertheless characterised rule 281 as “convoluted”. It observed that two matters were in issue. Firstly, did the amendments to rule 281 amount to an interference with the right to respect for family life within the meaning of article 8(1)? Moreover, was the interference justifiable under article 8(2)? Beatson J, whose decision Maurice Kay LJ applauded as “careful and painstaking”, had held that the amended rule does interfere with the right to respect for family life but that the interference was justified. In the Court of Appeal, the Home Office disputed that there was an interference whereas the appellants complained that the interference was not justified.
Maurice Kay LJ held that the rule pursued a legitimate aim. For him, the real issue was proportionality: it was the “real article 8 battleground”, he explained. The court did not accept the Home Office’s view that the language of “colossal interference” in the judgment of Lord Wilson JSC in Quila leaves room for the non-engagement of article 8(1) in cases where the interference is less than colossal. Maurice Kay LJ clarified that Lord Wilson was not laying down a test that the interference must be colossal. He was merely describing the facts in Quila, a case where the Home Secretary had clearly used a sledgehammer by setting a minimum age limit of 21 years for spouse visas but had failed to identify the size of the nut, and not prescribing a heightened test. However, Maurice Kay LJ agreed with the Home Office’s versatile argument that “a lesser interference may be easier to justify than a greater interference would be.”
Maurice Kay LJ rejected as “unsustainable” the argument that, despite occasionally using Wednesbury-like language, Beatson J had lapsed into the less intense Wednesbury approach and therefore departed from the approach to proportionality as articulated in cases such as Quila, de Freitas, Huang and Shabina Begum (and now Bank Mellat (No 2) and Lord Carlile). Moreover, the court was of the view that broad brushed arguments, headlined by references to “paternalism” and “social engineering”, were unfocussed and unhelpful and explained that the “central issue is: pre-entry or post-entry?” Beatson J’s judgment identified the disadvantages of the delayed post-entry test approach. It was therefore rightly anchored in the logic that the pre-entry tests were “stepping stone which a migrant would build on immediately on arrival in the United Kingdom.” His approach accorded with the Impact Assessment of July 2009 which considered the measures as assisting “a spouse’s integration into British society at an early stage” and Beatson J rightly held that the tests were more of a benefit than a burden.
Although “pressing”, the social problem in the present case was less pronounced in comparison to Quila and the court explained at para 27 that the rule involved “a relatively simple test, satisfaction of which would generally be achievable within a relatively short time.” The court accepted that the rule “creates anomalies” because a non-English speaking foreign spouse from one of the exempt countries was at liberty to enter the UK without satisfying the pre-entry test, whereas an English-speaking spouse from a non-exempt country without the stipulated educational qualifications suffered the inconvenience of satisfying the pre-entry requirement. However, for Maurice Kay LJ, it was “simply not possible to predict with precision how many people fall into either of those categories” and he rejected the claimants’ conceptual case that the justification tendered by the Home Office was long on estimates, assumptions, predictions and speculative assertions but short on empirical proof that the amended rule does not operate disproportionately. First of all, it was hard for the court to adjudicate upon such a submission in the abstract and the claimants sought to take advantage of the hypothetical nature of their case. Moreover, and quite crucially, they misunderstood the scope for judicial intervention in the instant case.
The Court of Appeal held at para 30 that the pre-entry tests are “a benign measure of social policy with the purpose of facilitating the integration of non-English-speaking spouses” and Maurice Kay LJ went on to hold that:
Where a State seeks to change its immigration rules in order to produce a benign result, it would be regrettable if, in order to justify the measure, whether pursuant to article 8(2) or article 14, it faced a burden which could only be discharged by irrefutable empirical evidence. The Secretary of State’s perception is essentially one of predictive judgment. Many a well-intentioned social change is supported by a rational belief in its potential to achieve its benign purpose but without being susceptible to empirical proof prior to its introduction. It is for this reason that it is appropriate for the State authority to be accorded a margin of appreciation in the formulation of its social policy. Without such an indulgence, many benign reforms would be stifled in limine. Of course the implications of the change of policy might be so dubious that it was demonstrably not justifiable. However, in some situations a margin of appreciation had to be pitched at a level which allowed for change, even if there was some risk to some individuals, that they would be adversely affected by it.
In light of Stec v UK, Contracting States are allowed a wide margin of appreciation under the ECHR when it comes to general measures of economic or social strategy. Unless “manifestly without reasonable foundation”, Strasbourg generally respects the national legislature’s policy choice. Moreover, because of their direct knowledge of its society and its needs, in principle national authorities are better placed than to appreciate what is in the public interest on economic or social grounds. Noting that this test informed the recent decision of the Supreme Court in Humphreys v Revenue and Customs Commissioners, the court said that without the margin “it might become impossible for a government to govern without waiting for judges to judge.” According to the court, no reason or contrary authority precluded such an approach in the present case and it held at para 32 that the UK identified a social problem; it considered an ameliorating solution; it assessed the implications of introducing the tests; it provided for exempt and exceptional cases; and, in the event, the effect on applications and grants was not numerically significant. Applying the wide margin of appreciation, it was clear that Beatson J was right to conclude that the move to a pre-entry requirement, pitched at a rudimentary level, was proportionate.
Distinguishing Quila, where the aim was to reduce forced marriages (“a severe social problem”), Maurice Kay LJ explained that there was “a world of difference” between the problems exposed in the instant case and the result produced by the amended rule 277 in Quila which acted as an insuperable obstacle to entry to those in the proscribed age group, even when the intended marriage was clearly unforced. On the other hand, Maurice Kay LJ said that in an individual future case, with established favourable facts, it might still be possible for an applicant to successfully to invoke article 8 or section 55 of the Borders, Citizenship and Immigration Act 2009. Even the Home Office accepted that, but the head-on challenge to the amended rule itself failed.
Similarly, Toulson LJ (as he then was) did not, at para 52, consider it appropriate for the court “to apply article 8 so as to stultify the experiment undertaken by the government”. For him and Maurice Kay LJ, the requirement that, prior to entry, a foreign spouse or partner of a British citizen or person settled in the UK must produce a test certificate of knowledge of English to a prescribed standard was indeed proportionate.
Maurice Kay LJ held that Beatson J had been correct in dismissing the claimants’ challenges under article 12 and article 14 ECHR. Reliance placed in Timishev v Russia, where it was held that no discrimination on ethnic grounds was objectively justified in a contemporary pluralist democratic society, as regards article 14 was rejected and the court said that:
41. … all immigration law is inherently discriminatory in one sense but it cannot be said that the separate queues at airport arrival halls for EU and non-EU travellers are unlawful. It is also a significant feature that the underlying concern in the present case is not one of immutable characteristic such as ethnicity or gender. It is with the ability to speak rudimentary English as a qualification for long-term residence.
The challenge on traditional Wednesbury common law grounds was unarguable and was a fortiori unsustainable. The court dismissed the appeals because in its amended form rule 281 did not breach any requirement of the ECHR or of domestic law. However, that did not mean that in a future case, on judicially determined facts, an individual claimant would not be able successfully to challenge the application of the amended rule in his or her case. The German Bundesverwaltungsgericht’s ruling in BVerwG 10 C 12.12 – that the spouse of a German national should not be kept waiting for more than a year by the application of the German pre-entry test – did not help the appellants because the reasoning was grounded in the provisions of the German Basic Law rather than on the ECHR. The Dutch cases did not speak with one voice and, if anything, they demonstrated that the courts did not find the pre-entry language test requirements with the aim of improving integration to be “inherently inimical to article 8.”
However, in his dissenting judgment, Sir David Keene would have allowed the appeal. For him, the advantages of the pre-entry test had not been demonstrated by any substantial empirical evidence to be no more than is necessary to achieve the legitimate aim (i.e. “economic well-being”, “public safety” or the “protection of the rights and freedoms of others”).
It was rumoured that the case of MM (Lebanon) and Others (see here), i.e. the Appendix FM litigation involving the minimum income requirements, would be heard alongside this case because the Court of Appeal applied a test of “rational belief” on both occasions. Under the test, it is considered sufficient that the policy embodied in the requirements will achieve the identified aim so long as the State has a “rational belief” in its potential to achieve its benign purpose without empirical proof prior to its introduction.
The test, which contradicts decisions like Baiai and Quila where the court articulated a test that required the Home Office to show an objective justification, is quite a muted form of judicial review. Arguably, the application of the “rational belief” test to solve human rights problems is unhelpful and at best the approach demonstrates the judiciary’s reluctance to encroach on territory it perceives as belonging to the executive.
Recently in Lord Carlile, the Supreme Court accorded the executive a wide margin of discretion vis-à-vis the political sphere by upholding the exclusion of dissident Iranian politician Mrs Rajavi from the UK because of the Home Secretary’s predictive judgment about Iran’s reaction to Mrs Rajavi addressing meetings in the Palace of Westminster on democracy, human rights and other policy issues relating to Iran. Like the Parliamentary appellants, the instant appellants have already lost twice in the courts below. Will they be “third time lucky”? It may be an ominous sign for them that in Lord Carlile, which involved article 10 ECHR, the Supreme Court emphasised its approach in Bank Mellat (No 2) that “no review, however intense, could entitle the court to substitute its own decision for that of the constitutional decision-maker.”
Finally, for the avoidance of doubt, importantly, MM (Lebanon) or any linked cases, in which judgment was handed down by the Court of Appeal in July 2014, do not presently appear on the Supreme Court’s list of cases. Permission to appeal has thus far not been granted in MM and it will therefore not be heard together with this case (in which permission to appeal was granted in April 2014).