Five years ago, in November 2010 the Immigration Rules were changed, and for the first time required foreign partner of a British citizen or a person settled in the United Kingdom to pass an English language test of compitance before coming to live in the UK with their partner.
Some people in certain countries found it difficult to pass this test, particularly those in rural areas where there are a lack of schools and facilities to learn the English language. The result was inevitably that the foreign partner or spouse would be prevented from joining their partner in the UK.
It should be noted that such tests establishing compitancy in the English language was of itself not new within the Immigration Rules, however, what was new, was the barring of spouses and partners from the country without first having passed a test.
Since 2007, spouses and partners applying for settlement inside the UK, were required to show their knowledge and integration into the United Kingdom by passing a test titled ‘Life in the UK’.
Data suggest that the number of spouses and partners failing the ‘Life in the UK’ test was never high. This is an indication that once spouses and partners are admitted into the United Kingdom, they have a far higher chance of learning the English language.
In any event, the 2010 language requirement caused particular concern for certain communities, particularly those from the India, Pakistan, and Bangladesh communities where marriage to partners from those countries is most common. They perceived the rule as a discriminatory measure which aimed to limit spousal migration from those and similar areas and a hinderance to their family life. They thus sought to challenge the validity of this requirement in November 2010, before it had come into force.
The Supreme Court ruled that the English language requirement had the aim of assisting the foreign partner’s integration into British society at an early stage. It was not difficult to see the benefits to integration of even a basic level of English language skills. It was not difficult to see a rational connection between the measure and the aim that the rule sought to achieve.
Although integration through a shared language skills was principally achieved through spouse or partner’s settlement stage, where they would pass a ‘Life in the UK’ test, the Court found that, there was some benefit to integration and cohesion in requiring a very basic level of language at the outset, before the partner had even come to the country.
There would be substantial interference with the family rights of certain people. For example, people living in remote rural areas may experience serious difficulties in gaining access to suitable tuition, which might only be obtainable at unreasonable cost. There might also be some for whom getting to a test centre would be impossible or prohibitively expensive.
There might be some benefit in declaring that the application of the rule would be incompatible with the right to a private family life under the Human Rights Art.8, in cases where it was impracticable for a person to learn English or take the test in their country of origin. The Court advised that the Government may need to make some exemptions to the rule. The court will be waiting for the applicant to make a request for such a declaration.
This judgement may be viewed as harsh for foreign spouses and partners that are finding it difficult to pass the test and will be prevented from living together with their partner interminably. Foreign spouses and partners have demonstrated since 2007, that they are able to learn English and pass the more challenging test of ‘Life in the UK’ within 2 years of being admitted into the UK.