New Judgment: R (Ali) v Secretary of State for the Home Department; R (Bibi) v same  UKSC 68
18 Wednesday Nov 2015
On appeal from:  EWCA Civ 322
The Supreme Court unanimously dismissed the appeal regarding whether the requirement of an English test for those spouses or civil partners of a British citizen wishing to stay in the UK breached their partner’s rights under the ECHR, art 8, finding that the Rule itself does not infringe art 8, but it invites further submissions from the parties on whether a declaration should be made that the operation of the guidance in its present form is incompatible with art 8 rights where compliance with the requirement is impracticable.
The appellants are UK citizens who have been married to foreigners since 2009 and 2010 respectively. Their husbands are unable to satisfy the pre-entry language requirement, in Saiqa Bibi’s case because he would have to relocate to Rawalpindi in Pakistan for several months, which is not affordable, and in Mrs Ali’s case because there is no test centre in the Yemen where they have had to live.
The High Court held that the Rule itself was not unlawful. The Court of Appeal by a majority upheld the High Court’s decision.
In delivering her substantive judgment, Lady Hale suggested that that the appropriate solution to avoid infringements in individual cases would be to recast the guidance which accompanied the Rule to grant exemptions in cases where compliance with the requirement is simply impracticable, and one remedy might be for the court to declare that the present application of the Guidance is incompatible with the rights of individuals in such circumstances. However she stated since this was not a remedy sought by the appellants the Court should invite further submissions before finally deciding the outcome of the appeal.
Lord Hodge and Lord Neuberger also gave substantive judgments agreeing that the Rule itself was not disproportionate but that the guidance may result in a significant number of cases in which the article 8 rights of individuals will be breached. They also agreed that further submissions were needed from the appellants.
To watching the hearing please visit: Supreme Court website