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| Introduction of knowledge of English language in immigration rules for foreign spouses lawful – Administrative Court. |
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| The judicial challenge was leveled against the amendments to paragraph 281 of the Immigration Rules which require the foreign spouses and partners of British citizens or persons settled in the UK applying for leave to enter the UK with a view to settlement, to produce a test certificate of knowledge of the English language to a prescribed standard.The claimants maintain that the new rule is a disproportionate and unlawful interference with their and their spouses' human rights and/or irrational under well-known and longstanding common law principles. The Home Secretary contends that it is a lawful way of promoting the integration of foreign spouses and partners into the community and protecting public services. It was submitted on behalf of the claimants that the new rule interferes with their rights under Articles 8 and 12 of the European Convention on Human Rights ("the Convention") to marry and live together in this country as a significant numbers of applicants for spouse visas will find it difficult or impossible in practice to satisfy the new rule. It was contended on behalf of the claimants that the resulting interference with the rights of the claimants, as British citizens or otherwise settled in this country, and in the case of Mr Chapti the spouse of such a person, requires powerful justification, and that there is no such justification in this case. It is also contended that the provision is discriminatory on grounds particularly of race and nationality, but also ethnic origins, language, gender and disability, and is thus contrary to Article 14 of the Convention read with Articles 8 and 12. It is also submitted that it is arbitrary, irrational and ultra vires at common law.
Mr Justice Beatson sitting at the administrative court Birmingham made the following conclusions dismissing the case:
“ (a) The new rule does not interfere with the Article 12 rights of the claimants:
(b) Article 8 is engaged in this case: the new rule impacted on the Article 8 rights of the claimants:
(c) The aims of the new rule, to promote integration and to protect public services, are legitimate aims within Article 8(2):
(d) Taking into account all the material before the court, in particular the exceptions to it, the new rule is not a disproportionate interference with family life and is justified. The fact that it may, in an individual case, be possible to argue that the operation of the exceptions in the way envisaged in the evidence adduced on behalf of the Home Secretary is a disproportionate infringement of that individual's Article 8 rights, does not render the rule itself disproportionate;
(e) As to discrimination contrary to Article 14 when read with Article 8, the exemptions based on nationality are not direct discrimination based on nationality. This is because the "bright line" drawn between countries considered to be "English-speaking countries" and those which are not is a rational one, and accordingly those who are exempt are not in a relevantly similar situation to those who are not exempt.
(f) The new rule does not indirectly discriminate on the ground of nationality, ethnic origins or disability: For the reasons given, in the case of the allegation of indirect gender discrimination, I have made no determination.”
For a full text of the judgment login at
Chapti & Ors, R (on the application of) v Secretary of State for the Home Department & Ors [2011] EWHC 3370 (Admin) (16 December 2011)
Courtesy : www.bailii.org |
