UK Spouse Visa English Language Requirement – Compatible with the ECHR?
One of the strictest requirements for obtaining a UK spouse visa is that the applicant must have knowledge of the English language and prove this by passing an approved English language test or have a qualification recognised by the NARIC that was taught in English.
Many UK spouse visa applicants who instruct Immigration solicitors do not have the best English. If someone has been turned down for a UK spouse visa, we are sometimes asked whether an appeal can be made on the grounds that the English language requirement is depriving the applicant of their rights under Article 8 of the European Convention of Human Rights (ECHR).
The history and scope of the requirement
Prior to 29th November 2010 when the knowledge of English requirement was passed, husbands and wives who entered Britain under a UK spouse visa only had to demonstrate a competent knowledge of English after two years (when they applied for settlement).
There are some exceptions to the rule. If applicants are over 65 at the time of applying, then a knowledge of English is not required. Also, applicants suffering from mental or physical incapacity, or exceptional compassionate circumstances, which would prevent the applicant from meeting the English language requirement are excluded.
If the applicant comes from one of the countries listed defined by UK Visas and Immigration, then they are also exempt from the requirement. These countries are:
- Antigua and Barbuda
- the Bahamas
- New Zealand
- St Kitts and Nevis
- St Lucia
- St Vincent and the Grenadines
- Trinidad and Tobago
Judgment of R (Bibi) and (ALI v Secretary of State for the Home Department
In 2013, the Supreme Court was asked to rule on whether the English language requirement for obtaining a UK spouse visa breached an applicant’s rights under the ECHR in R (Bibi) and ALI v Secretary of State for the Home Department.
Although the court agreed the pre-entry requirement engaged Article 8, the majority of the learned judges held that it did not in fact breach an applicant’s rights under it (Keen J dissented).
Immigration solicitors for the appellants also argued that the English language requirement failed to give regard to section 55 of the Border, Citizenship and Immigration Act 2009, which requires Immigration officials to have consideration for the best interests of the child.
The court looked into the original aim of the rule and asked:
“So what, then, are the aims of the English language requirement?”
They then went on;
“As originally stated, they were three: (i) to assist the partners’ integration into British Page 16 society at an early stage; (ii) to improve their Employment chances, given that they have access to the labour market as soon as they arrive; (iii) to raise awareness of the importance of language and to prepare for the tests they will need to pass for settlement. Following the consultation, three further aims emerged: (iv) to save translation costs; (v) to benefit any children the couple might have; and (vi) to reduce the vulnerability of newly arrived spouses, especially women. 34.
In article 8 terms, these probably fall under the rubric of “the interests of … the economic well-being of the country” or, just conceivably, “the protection of the rights and freedoms of others”.”
When discussing the issue of whether the English language requirement was proportionate when considered next to Article 8, it was held that the social problems identified with not having a good knowledge of English when relocating to the UK were proven to act as an impediment to integration. It also concurred that the Government was under no obligation to provide overwhelming or statistically sound evidence to justify its stance, therefore, the rule was proportionate.
In his dissenting judgment, Sir David Keene argued that significant problems of integration had not presented themselves prior to the rule coming into force in 2010. He argued that the rule was a disproportionate interference with the right to family life because when the statistics were examined, it showed that the problem of integration for those on a UK Spousal Visa was in decline prior to 2010. Because the Government had not presented evidence that the social problem they predicted was in fact a reality, the rule was disproportionate in its potential to interfere with family life.
Article 14 of the ECHR
The appellants also complain that the requirement discriminates against some people in the enjoyment of their Article 8 rights on grounds of nationality and may also be discriminatory on grounds of race or ethnicity. The court stated that:
“On its face, it [the English language requirement] is directly discriminatory on grounds of nationality.
However, in the context of a language requirement, being a national of an Anglo-phone country is a reasonable proxy for a sufficient familiarity with the English language to be able to begin to integrate with the local community immediately on arrival. This is a context in which a bright line rule makes sense. If the discrimination were not held justifiable, it would not follow that the English language requirement should be abolished. As with any discriminatory rule of this sort, the choice of cure can either be to level up or to level down. The Government could choose either to abolish the requirement altogether or to apply it to everyone, including partners from the exempt countries.
The discrimination argument therefore adds nothing to the article 8 argument, which for the reasons already explained, may lead to the conclusion that Convention rights have been violated in a significant number of cases.”
The decision in R (Bibi) and ALI v Secretary of State for the Home Department makes it clear that, unless exceptional, compassionate circumstances can be pointed to, the English language requirement of the UK spouse visa application is not in breach of Article 8 rights.
Proving compassionate circumstances can be difficult; therefore, it is best to consult an Immigration solicitor who has experience with previous cases of this nature and can provide you with the best advice.
OTS Solicitors is one of the most respected Immigration law firms in London. Our Immigration team dealing with settlement matters comprises of Smit Kumar, Hans Sok Appadu and Maryem Ahmed, all of whom can provide expert help and advice regarding obtaining a UK spouse visa.
By making an appointment with one of our Immigration solicitors, you can be assured of receiving the best legal advice available in the UK today.
If you wish to discuss any of the points raised in this blog, please phone our London office on 0203 959 9123.