Case Comment: R (Ali) v SSHD; R (Bibi) v SSHD  UKSC 68
27 Friday Nov 2015
This judgment was handed down on 18 November 2015. It concerns pre-entry language tests for immigration applications from abroad (entry clearance). Since November 2010 non-European spouses and partners wishing to join their British or otherwise settled spouses or partners have first had to pass an English language test.
This is a significant piece of social policy. From 2005 English language proficiency was required for citizenship. From 2007 it was also a requirement for those seeking indefinite (i.e. not time-limited) leave to remain. The Coalition Government then introduced the pre-entry test, on the expressed basis that this would assist integration into British society, to improve access to the employment market, and to raise awareness as to the importance of language.
The Supreme Court described these as “benign” aims. They were not, however, uncontroversial. Even assuming that a person who can speak the language is better integrated, and that the benefits of imposing the test are not outweighed by other disadvantages resulting from any limitations it imposes on immigration; some say that English is best learned in Britain. More significantly, in a number of places in the world there are real issues about accessing the necessary English language courses and tests. There are other concerns surrounding the ability of some to satisfy the tests, for example because of education levels, or disability (including learning difficulties). If a course cannot be accessed, or a test passed, then a couple may be permanently separated. The impact can be very significant indeed.
Mrs Ali and Mrs Bibi relied on these points in their challenge to the rule, which now forms a part of Appendix FM of the Immigration Rules. They said that the rule breached their rights under the European Convention on Human Rights, art 8 (the right to a family life), and that it was unlawfully discriminatory contrary to article 14 read with article 8 (discrimination). The main thrust of their challenge was that there were less invasive ways of achieving the same aims, and that the rule was disproportionate in its effect.
The challenge failed. Significantly, however, it failed only because the Court found that the rule itself was lawful. Whether analysed in terms of article 8 alone, or article 14 and article 8, the rule served a legitimate aim, and although the mixed evidence meant that its benefits were modest (see Baroness Hale at para ), and the impact could be significant, it would work perfectly well in a significant number of cases. Lord Neuberger was particularly keen that experimental policies not be deterred: para .
However, to a greater or lesser degree the Court also agreed that in a significant number of cases the rule would breach Convention rights. This might be because of particular circumstances such as learning difficulties. It might well be because of the practical unavailability, or the prohibitive cost, of attending courses and tests (which might require significant travel in the country of origin). For these reasons the Court said that the Secretary of State would likely need to redraft her guidance, and in particular the provisions for exceptionally disapplying the rule. Further submissions were invited on a form of declaration that might give effect to this need.
The upshot is that the rule survives, but a significant number of individual challenges may be on their way. In particular, where the impact of the rule is great, and a course is practically unavailable, then refusing entry clearance on a language basis may be unlawful.
For lawyers, the case shows the usual level of concern about the role of the Court in complex areas of social policy. A more interesting point may be the extent to which cases like this should be brought as “in principle” challenges, rather than waiting for individual facts. The judgment is replete with “we just don’t know yet” comments. The case may also yet throw up interesting points about the appropriate remedy in an “in principle” challenge of this kind. How far will it go in suggesting rewrites to the guidance?