R (Bibi) and (Ali) v Secretary of State for the Home Department
Read judgment: http://www.bailii.org/ew/cases/EWCA/Civ/2013/322.html
By a majority judgment (Sir David Keene dissenting) the Court of Appeal has today held the Government’s pre-entry English language requirement requiring a foreign spouse or partner of a British citizen or person settled in the United Kingdom to produce a test certificate demonstrating a knowledge of the English language to a prescribed standard prior to entering the United Kingdom is lawful and does not breach Convention rights.
The requirement was laid before Parliament on 1 October 2010 and came into force on 29 November 2010. Previously applicants were only required to demonstrate such knowledge two years after entering the United Kingdom (i.e. at settlement stage).
The rule has in-built exceptions including for those who are aged 65 or over at the time they make the application, those who have a physical or mental condition that prevents them from meeting the requirement, or those who can demonstrate that there are exceptional compassionate circumstances that prevents them from meeting the requirement (the term ‘exceptional compassionate circumstances’ remains undefined but includes persons who are nationals of countries where there is no approved test centre).
The most controversial exception relates to the nationality of the applicant. If the applicant is a national of Antigua and Bermuda, Australia, the Bahamas, Barbados, Belize, Canada, Dominica, Grenada, Guyana, Jamaica, New Zealand, St Kitts and Nevis, St Lucia, St Vincent and the Grenadines, Trinidad and Tobago, United States of America then they need not produce a test certificate.
Summary of the judgment
The Court agreed that the pre-entry requirement engaged Article 8(1) ECHR and called for justification. The interference was held to be in accordance with the law because it was caused by a correct application of the immigration rules. The Court rejected the suggestion that the amended rule was not in accordance with the law because there was a failure to have regard to section 55 of the Borders, Citizenship and Immigration Act 2009 which requires consideration of the best interests of children.
The Court agreed that the amended rule pursued a legitimate aim, which was to encourage integration and protecting public services/saving cost (economic well-being) – although Sir David Keene considered that the amended rule pursued ‘to a modest degree a legitimate aim, namely that of the economic well-being of the country’.
Insofar as proportionality, which is described as ‘the real Article 8 battleground’, the majority judgment (Maurice-Kay LJ, Toulson LJ) took the view that a social problem had been identified which was shown to act as an impediment to integration. A great deal of consideration was given to how the State would deal with the problem and in formulating a social policy in response to it the State has a broad margin of appreciation. In doing so, there was no need for the State to rely on overwhelming or statistically sound evidence to justify the social policy that it had devised, even if ultimately the policy was underpinned by no more than ‘predictive judgment’. The amended rule was therefore proportionate.
In dissenting, Sir David Keene took a different approach to the evidence and concluded that prior to its amendment the rule was not shown to give rise to significant problems. He noted that in fact the statistics revealed that if indeed there was a problem it was on the decline. He concluded that the Government had not demonstrated with reference to evidence that there was indeed the social problem complained of and therefore the amended rule was a disproportionate interference with the right to family life.
The Court left open the possibility that a significant number of those who are unable to satisfy the pre-entry test certificate requirement may be able to benefit from the exceptions, particularly the one based on “exceptional compassionate circumstances”, and that it remained open that in future cases, on judicially determined facts, an individual claimant may be able successfully to challenge the application of the amended rule in his or her case.
As to Article 14 (discrimination), the Court took the view that the underlying concern complained of in the present case was not one of immutable characteristic such as ethnicity or gender but with the ability to speak rudimentary English as a qualification for long-term residence. Although persons were being treated differently by reason of their nationalities (the exempt as against the non-exempt), nationality was being used as a proxy for familiarity with the English language and not the ground of discrimination per se.
The Court held that exempt v non-exempt persons were “not in a relevantly similar situation” and therefore incomparable under Article 14 and that in any event any difference in treatment between the exempt and the non-exempt nationalities has an objective, reasonable and proportionate justification.
The judgment raises an important issue as to the approach to be taken by the courts in reviewing the legality of governmental policy as reflected in immigration rules. The essential basis for the Court’s decision is that the courts should allow a wide margin to the executive when it interferes with fundamental human rights in order to carry out social experiments which are intended to be benign even though in practice they may well interfere with human rights. This amounts to the introduction of a new approach in examining the justification for a new rule based on a social policy in circumstances where the individual facts of the case have not yet been examined. There is no authority for this novel approach adopted by the Court of Appeal and it would appear contrary to established case law.
The amended rule continues to lead to an unprecedented interference with the right of British citizens and those legally settled in the United Kingdom to have their spouses or partners join them in this country. Such a restriction, especially against a lacuna in the evidence from the Government in seeking to justify its policy, as identified by Sir David Keene at paragraph 57 of his judgment, remains a matter of serious concern.
The Appellants have sought permission to appeal to the Supreme Court.
Mrs Bibi was represented by Tony Muman of 43 Temple Row Chambers led by Manjit S. Gill QC.