The supreme court has rejected a challenge against an immigration rule requiring spouses to be able to speak English before moving to the UK.
Five justices in London had been urged to rule that the pre-entry measure was “unreasonable, disproportionate and discriminatory”. But the panel, led by the court’s president, Lord Neuberger, unanimously dismissed an appeal by two women, who are British citizens. Their husbands, who cannot speak English, are foreign nationals and wish to join them in the UK.
Saiqa Bibi and Saffana Ali claimed the requirement breached their right to a private and family life under article eight of the European convention on human rights. It was said in both cases it would not be feasible for their husbands to pass a test before moving to the UK. But the supreme court decided on Wednesday that the rule did not infringe article eight.
Although the supreme court rejected the challenge against the rule, the judges asked for further submissions from the parties on “whether a declaration should be made that the operation of the guidance in its present form is incompatible with article eight rights, where compliance with the requirement is impracticable”.
The supreme court judgment follows earlier rulings in the high court and court of appeal that there was no disproportionate interference with family life.
Lady Hale, deputy president of the supreme court, suggested the appropriate solution to avoid infringements in individual cases would be to “recast” the guidance to grant exemptions in cases where compliance with the requirement was impracticable.
One remedy might be for the court to declare that the present application of the guidance is incompatible with the rights of individuals in such circumstances. Lord Neuberger agreed that the guidance seemed “bound to result in the infringement of article eight rights in individual cases”, but said the rule itself was not disproportionate.
Since late 2010, the spouse or civil partner of a British citizen or person settled in the UK has been required to pass an English language test before moving there. Before the amendment to the immigration rules, they were only required to demonstrate such knowledge two years after entering the UK.
In December 2011, a high court judge in Birmingham dismissed judicial review cases brought by three couples. Mr Justice Beatson ruled that the requirement did not interfere with their right to marriage, and was legitimate in its aim of protecting public services and promoting integration.
Two of the cases were then taken on to the appeal court but the judges ruled against the two wives in April 2013.
At a hearing earlier this year, Manjit Singh Gill QC, representing Bibi, told the justices the right to married life by living together was being restricted for the first time in British history by executive action.
In written submissions to the justices, James Eadie QC, for the home secretary, asked the court to dismiss the appeals. He said the case concerned the provisions of the immigration rules requiring applicants for spouse visas to demonstrate that they have achieved a certain level of competence in the English language, subject to certain exceptions.
The visa entitles the spouse to enter the UK for a limited probationary period. After that period is over, the spouse can then apply for indefinite leave to remain if the requirements of the immigration rules are satisfied.
Where an applicant for a spouse visa does not satisfy the pre-entry language requirement, the entry clearance officer will automatically consider the issue of whether there may be exceptional circumstances that warrant the grant of entry clearance outside the immigration rules on grounds of article eight “because refusal would result in unjustifiably harsh consequences for the applicant or their family”.