Supreme Court upholds English language requirement for partners

20 November 2015

Learning a foreign language can be an important part of moving to a new country, but it is not always a requirement for obtaining a visa. However, anyone applying for a UK settlement de facto, fiancée or marriage visa as the spouse or partner of a British citizen or permanent resident is required to prove their English language proficiency before coming to the UK. Two British women, Saiqa Bibi and Saffana Ali, recently challenged the language requirement in a case that was held before the Supreme Court. Both women are married to foreign nationals who do not speak English and who face substantial difficulties in meeting the requirement. The case centred on the claim that by requiring immigrants to pass the English language test before entering the country, the UK family immigration regulations were in breach of article eight of the European convention on human rights, which upholds the right to a private and family life. The women claimed that their families were being kept apart because it was not feasible for their husbands to pass the test before coming to the UK.

The Court disagreed, upholding the decisions made in several similar cases in the past. It ruled that the language requirement was not unreasonable, disproportionate or discriminatory, and therefore was not in breach of the human rights act. However, there are still families being kept apart by difficulties meeting this requirement for the UK partner or spouse visa, and the Court did suggest that the regulations might need to be adjusted in the future to enable exemptions to be granted in individual cases. The language requirement is intended to make it easier for new immigrants to settle in the UK. Being able to speak some English can be useful for practical reasons, from everyday exchanges in the shops to dealing with schools and doctors or applying for a job. Understanding the local language and culture can also reduce the social and emotional strain of moving to a new country. As well as helping new residents to settle in, the language requirements for the UK settlement marriage visa are also intended to relieve the pressure on public services caused by language barriers and to enhance community cohesion by helping new immigrants to connect to the people around them.

The pre-entry English language requirement has only been in place since November 2010. Before then, spouses and partner of UK citizens and residents were able to apply for a UK settlement visa that would enable them to live in the country for two years before being asked for proof of English language ability. Being able to study English in the UK made it easier for families to make the move. The current regulations can leave families or married couples living apart. Some applicants are exempt from the language requirements for family immigration: under 18s, over 65s, or those with chronic mental or physical conditions. Exceptions can also be made on a case by case basis, so if the UK Visas and Immigration (UKVI) entry clearance officer believes that it would be impossible for the applicant to meet the requirement, a UK marriage visa may still be granted in order to enable the family to live together. However, this only happens in exceptional cases.

Learning the English language in order to meet the UK immigration requirements is not always easy for foreign partners and spouses. In order to do so, visa applicants must not only learn the language, but also prove their knowledge of English by passing a test at an approved centre. Finding a centre locally is not always easy, and passing the test can require more than just knowledge of English. For someone who has no formal education or who is not used to computers, simply coping with the testing procedure can be difficult. These are the kinds of problems faced by Bibi’s husband in Pakistan and Ali’s husband in Yemen. The Supreme Court has suggested it will be open to hearing further submissions on the Ali and Bibi case. One avenue that may be explored is whether the pre-entry language requirement might be incompatible with article eight, but only in cases where it is impractical for the applicant to meet it. If this argument is made and accepted by the Court, the family immigration rules could be changed to enable more exceptions to be granted in individual cases.

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