Supreme Court: Pre-entry English Tests Are Lawful

R (Ali and Bibi) v Secretary of State for the Home Department [2015] UKSC 68 (18 November 2015)

Language, the most common human currency and form of expression, has become central to the great cultural tug-of-war unfolding in British society today. In times when the conflict of culture between east and west is clearly in the ascendant, “early” integration initiatives to bond migrant communities into the British way of life are driving a wedge between British “breadwinners”, whose foreign spouses and partners are affected by pre-entry English tests, and the authorities, who consider that culture and economics should act as a filter to keep out the unwanted. This decision given by Lord Neuberger (President), Lady Hale (Deputy President), Lord Wilson, Lord Hughes and Lord Hodge reveals quite a lot about the dividing line between cultures. It equally exposes the tensions between the drive to make foreigners gel into the host society and the human rights of British citizens who happen to have a spouse or a partner from a non-EEA country. The justices found that it is lawful to require foreign spouses or partners of British citizens to demonstrate – in the form of a certificate – knowledge of English to a prescribed standard before entering the UK.

Holding that integration in the host British society at an early stage is “undoubtedly an important aim”, the Supreme Court unanimously dismissed abstract challenges to the pre-entry English language tests for partners in the appeals of Ali and Bibi who complained that requirements targeting integration into the host society disproportionately breached their rights under article 8 of the European Convention on Human Rights (ECHR). On the other hand, the suitability of the guidance issued in relation to the operation of the immigration rule laying down the pre-entry English requirement remains open to question. For Lady Hale, operating the rule together with the present guidance is “likely to be incompatible with the convention rights of a significant number of sponsors.” According to Lord Neuberger, it is “virtually certain” that article 8 rights will be infringed in a “significant number of cases”. Lady Hale proposed recalibrating the guidance in order to avoid article violations in individual cases.

Despite the dismissal of these appeals, the ruling has been seen as “damaging” because both Lady Hale and Lord Neuberger showed a soft spot for article 8 rights in circumstances where it is “impracticable” for the foreign spouse to take the test. Even though the overall result was against the appellants, the court clarified that it needed to hear further argument as to whether the guidance should be the subject of a declaration. But ultimately, the court did not really reject the use of English as a type of passport for entry to the UK – a country usually credited with “decolonising” minorities living within its borders.

The UK’s language problem is the small print in the bigger picture of British nationality. In a year that more a million refugees have arrived in Europe and at a time when the government seems poised to resume its attacks against the Human Rights Act 1998 (HRA), it is interesting to recall that the acclaimed author and human rights campaigner HG Wells observed 75 years ago: “They talk languages we do not understand … they stimulate xenophobia without intention.” Unsurprisingly, debate is presently raging over whether or not migrants are liabilities or assets to the UK and whether their values accord with Britishness. However, economic truths are telling and often negate politicians’ rhetoric. For example, the Office of Budget Responsibility (OBR) thinks that soaring net migration is the driving force behind the rise in the UK’s economic fortunes.

The OBR’s forecasted £27 billion windfall allowed chancellor George Osborne, who wants to shrink the size of the state of 36% of GDP, to temporarily halt his plans to savagely cut welfare and balance the books. Immigrants are not always a burden to the UK but the anti-immigrant lobby is finding ammunition in “working research” just released by the Bank of England (BoE) that argues that migration is driving British jobseekers’ wages down. However, the BoE’s Quarterly Bulletin 2015/Q4 explains that the recent surge in inward net migration “largely represented people arriving having already secured a job or looking for work” which is “consistent with a cyclical response of net migration to changes in relative job prospects in the United Kingdom and abroad.”

Migrant bashers blindly relying on the BoE study should observe that the bank is not exactly scandal free and its role in benchmark and forex rigging aren’t exactly the UK’s finest hour. Dr Carney – who controversially called Brexit a “yawner” – may have radicalised the BoE by expressing strong views on climate change and encouraging dissenting views to be published but he is under fierce attack for his rhetoric on “inclusive capitalism” and is widely seen as the chancellor’s mouthpiece and puppet. The Guardian’s Jon Crace renamed him Mogadon “Mañana” Mark Carney and explains he “is a miracle of economic and comic genius by always being right at the same time as always being wrong. A contradiction of creative nihilism.”

Context

In October 2010, under paragraph 281, Statement of Changes to the Immigration Rules CM7944 introduced the pre-entry English test rule which subsequently came to be remade as paragraphs E-ECP 4.1 and E-LTRP 4.1 of Appendix FM to the rules as inserted in June 2012 by Statement of changes to the Immigration Rules HC194 (the so-called “new rules”). Nationals of English speaking countries are exempted from the rule and age, disability and circumstances may also be grounds for being freed from it. Prior to 2010, spouses had not been required to show that they could speak English until after two years of living in the UK. Concerns were raised in the Supreme Court that, for the first time in British history, the right of married individuals to live together was being restricted by executive action (see preview). The rule has been called “a significant piece of social policy.”

The appellants’ expert pointed out that preparation for the test, set at level A1 CEFR for speaking and listening, could involve 90 hours of tuition (albeit the government assessed that 40-50 hours tuition is sufficient). Yet following a sixfold rationale the rule operates to facilitate early integration, increase the prospects of employment, lay the foundation for later tests required to achieve settlement, benefit the couple’s children’s future and decrease the vulnerability of foreign spouses and translation costs. Under issued guidance “exceptional circumstances” may only rarely be relied on to bypass the requirements and financial hardship and illiteracy do not suffice as excuses.

Bibi, a British citizen, wanted her Pakistani husband to join her in Britain but could not due to the rule as her husband would have to travel long distances and relocate in order to demonstrate the requisite English skills. They keep in touch with one another by telephone and occasional visits to Pakistan. Saffna Ali, also a British citizen, married in Yemen but her husband spoke no English; she lives in Yemen due to her partner not being able to come to Europe because of his inability to use English to communicate. The weaknesses of the appellants’ cases were revealed at an early stage. At first instance, Beatson J had found these cases had “an abstract flavour” and were “based on assertion”: see [2011] EWHC 3370 (Admin). The Court of Appeal upheld his judgment by majority: see [2013] EWCA Civ 322, Maurice Kay and Toulson LJJ, Sir David Keene dissenting.

In between these two judgments, Blake J, said that Ali and Bibi’s case on discrimination grounds had been beset by “depressingly inefficient” preparation: see [2012] EWHC 2789 (Admin). For failures related to presenting the case, Blake J chastised the lawyers bringing the claim for making “no realistic attempt” to deal with developing jurisprudence on key issues. However, in sequel proceedings arising out of the financial requirements in MM Lebanon [2013] EWHC 1900 (Admin), by contrast Blake J likened the onerous minimum income requirements to “cruel mockery” albeit he arguably fell prey to an error of law by wrongly conflating three rights to create a tripartite right based on common law, statute and the ECHR, a super-right which was strong enough to require “compelling justification” so as to justify interference; the approach was subsequently reversed by Maurice Kay Aikens and Treacy LJJ in [2014] EWCA Civ 985 (see here)

Supreme Court

(i) Lady Hale

Some parts of the judgment will sound like music to the home office’s ears because refusal letters routinely make the same point. In light of Abdulaziz v UK (1985) 7 EHRR 471 and Jeunesse v The Netherlands (2015) 60 EHRR 17 it was held that right to respect for family life guaranteed by the ECHR includes the right of married couples to live together but article 8 does not impose a general obligation on a state to respect married couples’ choice as regards the country of their matrimonial residence and to accept foreign spouses for settlement in that country. On the other hand, perhaps less melodiously for the authorities, the interference with the right must still be proportionate, striking a fair balance between the interests of the individuals and the community as a whole.

Observing that Strasbourg examines article 8 cases in terms of a “fair balance”, Baroness Hale of Richmond (with whom Lord Wilson agreed) produced a detailed analysis applying the proportionality test as formulated by the UK courts in Huang [2007] UKHL 11 and Aguilar Quila [2011] UKSC 45. In relation to whether the legislative objective is sufficiently important to justify limiting a fundamental right, her Ladyship found that the six objectives underpinning the rule intend to safeguard the UK’s economic well-being or even protect of the rights and freedoms of others. The aim was legitimate and sufficiently important to justify interference with the article 8 right despite doubts about the value of pre-entry tests as compared to access to post-arrival opportunities to learn English. The early integration of foreign partners is both a benign and important aim likely to produce empowering effects for entrants. The court rejected the argument that a pre-entry test does not significantly benefit migrant women suffering domestic abuse and it was held at para 39 that “it is likely that even basic language skills will be of some benefit to vulnerable women who come here as spouses.”

It was equally clear at para 40 that all the stated aims are aspects of the overall aim of accelerating foreign partners’ early integration into British society. Our Shared Future (2007), a report by the independent Commission on Integration and Cohesion, distinguished cohesion from integration explaining that cohesion involves different groups getting on well together whereas integration involves new residents and existing residents adapting to each other. Subsequent research, Public Attitudes towards Cohesion and Integration, found the inability to speak English as the biggest obstacle to “being English”. Moreover, interaction between diverse communities is key to creating a better feeling of community and cohesion and a shared language is crucial in this process as regards settled communities, new communities, and future generations of migrants.

Maurice Kay LJ (as he then was) had therefore quite rightly described the tests as “benign” and Lady Hale agreed because:

41. It is not difficult to see the benefits to integration of even a basic level of English language skills. It must be beneficial for a newly arrived partner to be able to go into a shop and buy groceries and other necessities, to say “hello” to the neighbours, to navigate public transport, to interact at a simple level with bureaucrats and health care professionals. Integration is a two way process. It must be beneficial for others to see that the people living in our midst and intending to stay here are able and willing to join in and play a part in everyday social interactions, rather than keeping themselves separate and apart.

Reviewing the expert evidence – which claimed that learning a language was more like learning to drive or use a computer rather than studying law or geography and pointed out the multiplicity of economic, social, cultural and civic dimensions to integration – Lady Hale also said “the aim of a pre-entry language requirement is not as important as the aim of ensuring that all migrants learn English once they are here.”

Beatson J (as he then was) had strayed into debatable terrain by thinking that spouses and other partners are a “key target group” whose language skills after entry are not as good as those of other migrants. The Supreme Court rejected the argument that a very basic level of spoken English before entry makes no contribution towards promoting integration at all. Despite expressing some doubt over the extent of the contribution towards integration made by the rule because of the post-entry ILR language requirement, Lady Hale held at paras 46-48 that on the whole the English tests make a contribution to the overall aim of promoting integration and that the rule is no more than necessary to achieve this contribution. But as her Ladyship explained, the real question was whether a fair balance had been struck? The paucity of reliable information on the effect of the tests on entry clearance applications was reflected in the authorities’ shirking systematic study of the net impact of the rule. Yet, irrespective of that fact, it was not impossible to work out the degree of interference with article 8 rights. Some people will have command of English, others will be able to arrange tuitions and attend a test centre. However, there will be those whose command of English is poor, who cannot arrange tuition and face obstacles as regards age, social position, cultural values and expense. Therefore, Lady Hale emphasised that:

52. The interference with the article 8 rights of the British partners of the people who face these obstacles is substantial. They are faced with indefinite separation, either from their chosen partner in life, or from their own country, their family, friends and employment here. It is worth recalling that the interference in Aguilar Quila, which was termed “colossal”, was merely temporary, whereas the interference here may be permanent.

The Supreme Court found that the rule itself is not the problem. Rather, the narrow interpretation afforded to the phrase “exceptional circumstances” in the guidance accompanying the rule meant that the fair balance required by article 8 had not been struck in a significant number of cases affected by the rule. The point was strengthened by the comparatively modest benefits of the pre-entry requirement as juxtaposed with the impracticalities of some applicants meeting the requirement. In fact for Lady Hale the “only conclusion” was that while the rule is lawful, present practice still failed to strike a fair balance for article 8 rights in a significant number of cases. However, despite limited clawback for Ali and Bibi because of the rule being wrinkled by the guidance, she also held at para 55 that in some cases the interference was not too great and the rule did not need to be struck down.

As for discrimination, the court was adamant at para 56 et seq that exempting those from English speaking countries was sensible. Nationality of one of the 13 exempted countries “is a reasonable proxy” for sufficient English skills allowing fresh arrivals to be able to begin integration immediately. Oddities about French speaking Canadians and conflicts of status between Caribbean nations such as Jamaica (exempted) and African countries like Nigeria (not exempted despite English only schooling) were irrelevant because “this is a context in which a bright line rule makes sense” and Lady Hale held that direct discrimination on the grounds of nationality was justified under article 14. The solution to prevent breaches of article 8 in individual cases – where complying with the rule is “simply impracticable” – would be for the guidance to be recast so as to cater for exemptions. The court might, as a remedy, declare the present version of the guidance incompatible with the rights of individuals in such situations. However, as Lady Hale explained at para 60, because such a remedy was not sought the Supreme Court should invite further submissions before making a final decision on the outcome of the appeal.

(ii) Lord Hodge

Lord Hodge (with whom Lord Hughes agreed) concurred with Lady Hale that the rule could not be struck down but that the guidance may cause article 8 of individuals to be breached in significant number of cases where costs were inordinate and the actual test delivered exceeded the requirements laid down by the rules. His Lordship was not convinced that a declaration in relation to the guidance was appropriate. As far as he could see, the government might need to amend its guidance or take further steps to provide opportunities for spouses and partners to obtain tuition and sit the test without incurring inordinate costs.

Moreover, Lord Hodge opined at para 76 that circumstances in the countries where incoming spouses and partners resided were likely to change over time. He found little benefit in a generally worded declaration giving no guidance on what made it unreasonable to expect the incoming partner to comply with the rule. Equally, Lord Hodge also found it inappropriate to extend declarations of incompatibility beyond the scope of section 4 of the HRA. But he was content with Lady Hale’s proposal that further submissions were appropriate before making a final decision on the outcome of the appeal.

(iii) Lord Neuberger

In a cameo judgment, Lord Neuberger of Abbotsbury subscribed to the conclusion that the guidance inevitably falls into conflict article 8 in individual cases but that on its own the rule is proportionate. He observed that the present appeals had been brought in limine and not on the basis of the rule’s operation. Agreeing with Toulson LJ in the Court of Appeal that there is “an inevitable degree of crystal ball gazing” when an experimental scheme such as the rule was enunciated, his Lordship expressed sympathy with the declaration proposed by Lady Hale about the guidance and also thought that it would be “unusual” to grant it without considering further submissions because it was the rule which had been challenged and not the guidance. Lord Neuberger found the aims of the rule to be “plainly legitimate” and added “they are the sort of aims which one would expect a government to have.”

Not that the appellants had raised the point, he nevertheless urged caution against complaining about the precise assessment of the extent of the likely benefits of the rule because the approach could lead to the abandonment of experimental policies. In view of the research that was done in anticipation of the rule and the wide measure of discretion which should be accorded to the executive in a case of this nature, Lord Neuberger agreed with Lady Hale’s application of the proportionality test and concluded that the rule strikes a fair balance between the rights of individuals and the interests of the community. He also applauded Lady Hale for her exposition of the limits on article 8(1) rights in ZH (Tanzania) [2011] 2 AC 166 at para 19 where she noted that despite making severe comments against a Brazilian mother with a “cavalier attitude to Dutch immigration rules”, in Rodrigues da Silva, Hoogkamer v Netherlands (2007) 44 EHRR 34 the Strasbourg court found a violation on the facts of the case.

As regards the rational connection limb of the proportionality test, his Lordship explained at para 85 that the court’s approach “should not be absolutist”. In light of Bank Mellat v HM Treasury (No 2) [2013] UKSC 39 and the Canadian case of R v Edwards Books and Art Ltd [1986] 2 SCR 713, the question is best framed in terms of the limitation of the protected right, one that it was reasonable for the legislature to impose to achieve the legitimate aim, bearing in mind any alternative methods of achieving that aim. Lord Neuberger was concerned that the experts claimed that there was real reason to doubt the likely efficacy of the rule in achieving each of the six aims, but he did not find that the evidence justified that the tests infringed article 8.

Comment

This judgment will mean different things to different people. Inevitably, strategists of stringent integration may interpret the route taken by the top justices to be lenient whereas advocates of open textured and fluid human rights theories may be disappointed for what the future holds in relation to the pending MM (Lebanon) case – litigation concerning the minimum income requirements for spouses and partners. The Supreme Court has given everyone quite a lot to think about as a result of these proceedings. Despite finding that the rule is not unlawful, the justices were prepared to be charitable on the politically sensitive issue of family life. Lord Hodge did mention MM to make the point that Aikens LJ made below, i.e. the court is not entitled to strike down an immigration rule unless satisfied that the rule was incapable of being operated in a proportionate way and so was inherently unjustified in all or nearly all cases. Consequently, the instant appellants fail to demonstrate that the rule itself constituted an unjustifiable interference with article 8 rights.

In MM, at first instance Blake J held that the maintenance requirements of Appendix FM amounted to a “considerably more intrusive interference” than the “colossal” interference arising out of the minimum age for marriage prescribed by the harsh immigration rule that was struck down in Quila, or the basic language test that was challenged unsuccessfully in the present cases. A key difference between MM and the present appeals is that the requirements are more onerous because and almost half of the UK’s population is unable to show the annual earnings thresholds of £18,000 for partners and additional income requirements for children, £3,800 for the first child and £2,400 for each child thereafter, wishing to enter the UK. However, the similarity lies in the abstractness of the challenges mounted by MM (a refugee) and AM and SJ (who are both British) because none of the three claimants’ partners have applied for entry clearance under the new rules, albeit under the old rules AM’s wife has been refused admission as a spouse on three occasions and once as a visitor in 2012. The home office relies on the fact that none of the facts had been proved and that the appeals were not concerned with any individual cases because no individual decisions had been made.

Of course, slight shades of the court’s historic ruling in Quila can be found in the present judgment and Lady Hale recalled it as an instance where the Supreme Court upheld the principle that married couples have a right to live together. Lord Wilson declined to follow Abdulaziz because of being “an old decision”. Indeed, turning on an ill-conceived provision to deter forced marriage which operated as a sledge-hammer to smash a nut of an unidentified size, Quila is one of those cases in the court’s jurisprudence that has come to represent the triumph of light over darkness and good over evil. Both Diego Quila and Bibi (the Pakistani applicant for admission with the same name as one of the appellants in the instant case) had made applications. The Quilas raised compassionate and exceptional circumstances and the resulting refusal by the home office caused Amber Quila, a British citizen, to be constructively expelled from the UK. Similarly, Bibi’s spouse Mohammed, a British citizen who had always lived in the UK, also briefly exited the UK before his wife was granted a marriage visa while judicial review litigation was pending.

However, not everyone in the judiciary approved of the outcome in that historic case. In Proportionality: the way ahead?, Arden LJ congratulated Lord Brown for his dissent in Quila crediting him with “exposing a significant point of difference in law between the majority and minority judgments.” Her Ladyship was startled that the majority in Quila did not think that it was open to them to give weight to the executive’s judgment on the value of the measure adopted.

Clearly, Arden LJ subscribes to the view that the judicial impeachment of executive measures is dangerous. She attacked the majority for making “no detailed qualitative judgment of the interests of the community in preventing forced marriages or of the interests of parties to unforced marriages. The effects on the latter had not been properly researched and were regarded as ‘colossal’.” So perhaps judges who are not human rights expansionists will be relieved that although the appellants were able to evidentially prove that the tests did not get partners off to a “flying start” in comparison to post-entry opportunities, the Supreme Court nevertheless paid respect to the wishes of the executive by holding that the aim underpinning the rule is legitimate and sufficiently important to justify interference with article 8.

In any event, the article 8 saga looks set to continue in an action-packed upcoming year. Apart from MM, other exciting cases such as Agyrako and Ikuga UKSC 2015/0130 (see here) and SS (Congo) UKSC 2015/0168 (see here) relating to partners, Appendix FM, “insurmountable obstacles”, “exceptional circumstances” and coverage vis-à-vis article 8 have entered the Supreme Court and permission to appeal in these matters was granted by Lady Hale, Lord Wilson and Lord Carnwath on 3 November 2015. In fact the court’s website presently reveals that SS (Congo) – where an application for entry clearance was refused for not meeting the minimum income requirements, but the tribunals allowed the appeal only for the Court of Appeal to later overturn the decision – and the conjoined appeals in MM (Lebanon) will be heard together on 22 February 2016.