On 18 November 2015 the Supreme Court handed down judgment in R (on the applications of Ali and Bibi) v Secretary of State for the Home Department  UKSC 59. The cases concerned a challenge to the introduction in 2010 of an Immigration Rule. The Rule imposed a requirement that spouses or partners from certain non-EEA countries who wish to marry British Citizens or persons settled in the UK should first learn a certain level of English, and pass a test, before they join their spouses or partners in the United Kingdom.
In a long awaited decision the Supreme Court has not yet finally concluded what the result ought to be. The Supreme Court has decided to invite further submissions on whether it would be appropriate to give declaratory relief on how the Rule ought to be applied to reflect the Court’s concerns which are set out in the judgment.
Through-out the litigation, which started in 2010 in the Administrative Court, the appellants had alleged that the Rule was contrary to the right to respect for family life in the European Convention of Human Rights (Article 8). Although the Rule contains the possibility of an exemption in exceptional circumstances, the appellants had also made submissions at each stage of the litigation that the Secretary of State’s interpretation of ‘exceptional circumstances’, as set out in Home Office Guidance, was too narrow and showed that the Rule would be applied unlawfully in contravention of Article 8. The judicial review claims were dismissed by the High Court and by the Court of Appeal by a 2-1 majority decision.
In the Supreme Court, Lady Hale gave the first judgment, with which Lord Wilson agreed. She said that she would refuse the remedy of striking down the Rule or declaring it invalid because, as framed, it was capable of being applied compatibly with Article 8. But she went on to say that the operation of the Rule, in the light of the Guidance, was likely to be incompatible with Convention rights in a significant number of cases. She concluded that there was likely to be some benefit, both to individuals and to those administering the Rule, in declaring that the application of the Rule would be incompatible with Convention rights in certain types of cases such as where it would be impracticable without incurring unreasonable expense for a foreign spouse or partner to gain access to the necessary tuition or to take the test. Lord Hodge and Lord Hughes also recognised that the Guidance ought to be amended because it would lead in a number of cases to a breach of Article 8.
Lord Neuberger said that he saw considerable attraction in granting declaratory relief to reflect the concerns that the whole Court had about the application of the Guidance. He said that this was an important and sensitive topic, and it would be unfortunate if there was no formal record of the Supreme Court’s concerns. A final decision will however be made after considering further submissions from the parties. The appellants have therefore filed written submissions formally seeking declaratory relief in relation to the Guidance. The Secretary of State for the Home Department has yet to respond.
Whether or not the Court ultimately makes a declaration, the judgment already contains several important judicial statements, such as statements about the substantial interference that will be caused to family life in many cases, the limited value of a pre-entry language requirement in promoting integration, and the inadequacies of the Guidance. These statements should mean that, although the Rule itself has not been declared unlawful, more applications for entry clearance and appeals against refusals should now succeed on Article 8 grounds where the pre-entry English requirement has not been satisfied. The Secretary of State will also have to issue new and modified Guidance which properly reflects the court’s concerns.
The appellant (Ali) was represented by Ramby De Mello and Abid Mahmood, instructed Ramzan Sharif and Keerum Akhtar of Fountain Solicitors, Walsall.
A full copy of the judgement can be found at https://www.supremecourt.uk/cases/uksc-2013-0266.html