It has been over a year since the High Court heard a challenge to the introduction of pre-entry English language tests for spouses and partners (and fiancés and proposed civil partners). It was argued in Chapti & Ors, R (on the application of) v SSHD & Ors  EWHC 3370 (Admin) that the changes to the Immigration Rules were unlawful by reference to Article 8, 12 (right to marry) and 14 (prohibition of discrimination) of the ECHR.
In the High Court, Beatson J held that the amendment to the Rules did interfere with the right to respect for family life but that the interference was justified. The claimants appealed to the Court of Appeal challenging this finding of justification and the SSHD also argued on appeal disputing that there was actually an interference.
The Court of Appeal has now given judgment on 12 April 2013: Bibi v SSHD  EWCA Civ 322 with the change of name seemingly arising out of the first claimants Mr and Mrs Chapti not pursuing an appeal.
The two remaining sets of appellants, Mr and Mrs Ali and Mr and Mrs Bibi, are married and in both cases, the wife is a British citizen. The husbands are foreign nationals and do not speak English. Mr Ali is Yemeni, has no formal education and is illiterate. It was also put forward that there is no approved test centre in Yemen which would provide tuition in English to the required level and further that the tests can only be taken online and Mr Ali has no computer skills. Mr Bibi is Pakistani and is educated but there is no approved test centre in the area in which he lives. The nearest ones are 115 and 141 km away and the couple have a young child. He too would need to learn computer skills before sitting the test.
In both the High Court and the Court of Appeal, there has been no judicial determination of these facts since no entry clearance application had been made. The cases proceeded as matters of principle and the assumed facts provided a framework in which to test the lawfulness or otherwise of the amendment. Liberty and JCWI also intervened as interested parties.
Unfortunately the Court of Appeal has endorsed Beatson J’s judgment and finds that the amendment to the Rules is proportionate. Delivering the leading judgment, Maurice Kay LJ stated the following:
32. I am led to the conclusion that the Secretary of State identified a social problem (see Beatson J at paragraph 94); she considered an ameliorating solution; she assessed the implications of introducing it; she provided for exempt and exceptional cases; and, in the event, the effect on applications and grants was not numerically significant. Moreover, it may well be that a significant number of those who are unable to satisfy the pre-entry test certificate requirement will benefit from the exceptions, particularly the one based on “exceptional compassionate circumstances”. Applying the wide margin of appreciation which I consider to be appropriate, I consider that Beatson J was right to conclude that the move to a pre-entry requirement, pitched at a rudimentary level, was proportionate. There is a world of difference between this requirement and the prohibition in Quila which acted as an insuperable barrier to entry to those in the proscribed age group, even when the intended marriage was demonstrably unforced. It is, of course, possible that in an individual case, with favourable facts found, a particular applicant may be able successfully to invoke Article 8 or some other protection (for example, section 55 of the Borders, Citizenship and Immigration Act 2009). The Secretary of State accepts this. But the head-on challenge to the amended Rule itself fails.
Concurring, Toulson LJ highlighted the following which seemed to be key in the Court’s endorsement of the SSHD’s rationale behind the amendment to the Rules:
50. (…) (It made it) reasonable in my view for the Home Secretary to have considered that there was a real problem of a significant number spouses lacking a basic level of English 2 years after entry to the UK. There may be other ways of interpreting the statistics, as there often is, but that is not an unreasonable evaluation.
52. (…) The point is that government would be unduly trammelled if judges required an unrealistic level of proof of the benefits intended to be obtained by new processes. A broader approach is justified, under the rubric of a broad margin of appreciation.
Of some comfort, Sir David Keene dissented. Whilst he agreed that it is desirable that those entering the UK should have some basic level of understanding of English or should achieve this as soon as possible after arrival, he did not accept that (1) the amendment was no more than was necessary to accomplish the legitimate aim and (2) that it struck a fair balance between the rights of the individual and the interests of the community. Sir David Keene did not accept that an interference with Article 8 rights “can only be justified by the production of ‘irrefutable empirical evidence’” but that “some empirical evidence to justify the interference” was not unnecessary or impossible [Paragraph 56]. He called for evidence to have been produced to demonstrate the extent of the existing perceived problem and briefly analysed the statistics with regards to the post-entry language test, taken typically following the first two years of entry in the UK.
Sir David Keene’s view was that the post-entry test appeared to be working and a summary of the notable figures can be found at Paragraph 57. His assessment of the evidence was also that the pre-entry test pitched at such a level seemed to be of very little value as a means of communicating in English [Paragraph 58]. Sir David Keene concluded that:
59. (…) the pre-entry test contained in the amendment has not been demonstrated by any substantial empirical evidence to be no more than is necessary to achieve the legitimate aim. The post-entry test appears to have been increasingly successful in dealing with the limited problem, and that test presented far less of an interference with family life than that in the amended Rule. It is in addition difficult to see, on the evidence, what additional benefits to the public interest the new test brings, and in that situation it does not seem to me to justify the interference with Article 8 rights. As such it does not strike a fair balance between the public interest and the rights of the individual.