Chapti & Ors, R (on the application of) v Secretary of State for the Home Department & Ors (Rev 1)

A general challenge to an Immigration Rule may succeed where the rule’s adoption is unlawful or where its operation is incapable of being Convention-compliant; it is not necessary to show that every application will breach Convention rights. A pre-entry English-language requirement for spouse visas engaged Article 8 but pursued legitimate aims, including integration and protection of public services. Having regard to the low threshold, available exemptions and the evidence, the requirement was proportionate in general. Its application might nevertheless require individual consideration under Article 8. Nationality-based exemptions were rational bright-line distinctions and did not constitute unlawful direct or indirect discrimination. The court made no determination on indirect sex discrimination.

Three consolidated judicial review claims challenged amendments to paragraph 281 of the Immigration Rules, requiring certain foreign spouses and partners seeking entry or leave to remain with a view to settlement to demonstrate English speaking and listening ability at CEFR level A1.

The claimants relied on Articles 8, 12 and 14 of the Convention, common-law irrationality and related public-law grounds. The Secretary of State argued that the challenge was premature and that the requirement promoted integration, employment and protection of public services. The central issues were whether the rule engaged Convention rights, whether it was justified and proportionate, and whether its exemptions discriminated unlawfully.

1. Challenge to the rule. A general challenge need not establish that every application of an Immigration Rule would breach Convention rights. A rule may be unlawful because its adoption is ultra vires or because its impact on rights is unlawful, even though some applications may be valid. The court must nevertheless distinguish the legality of the rule from the proportionality of its application in an individual case.
2. Articles 12 and 8. The requirement did not interfere with Article 12. Article 12 does not confer a right to marry in the United Kingdom where one proposed spouse is abroad without a right of entry, nor does it govern the right of married couples to cohabit in a particular country. Article 8 was engaged on the asserted facts, even though some spouses had never lived together in the United Kingdom.
3. Justification and proportionality. Applying the structured proportionality questions identified in R (Quila) v Secretary of State for the Home Department [2011] UKSC 45, the aims of promoting integration and protecting public services were legitimate under Article 8(2). The requirement was rationally connected to those aims. Relevant considerations included the benefits of basic English, the difficulties shown by the proportion using the easier ESOL route, employment and educational benefits, translation costs, the availability of overseas tuition and testing, and the exemptions.
4. The low A1 threshold and exemptions for age, disability, exceptional compassionate circumstances, English-speaking nationality and qualifying academic qualifications made the rule proportionate in general. Difficulties in a particular country or individual case concerned the operation of the exemptions or an individual decision, rather than the validity of the rule itself. The rule was therefore not disproportionate under Article 8.
5. Article 14 and common law. The nationality exemptions were rational bright-line distinctions intended to identify persons likely already to satisfy the language requirement. The rule did not indirectly discriminate on grounds of nationality, ethnic origin or disability. The court did not determine the allegation of indirect sex discrimination because the issue was raised too late and the evidence and submissions were insufficient. The consultation and irrationality challenges were unarguable.
6. The prematurity objection was not determined because it was unnecessary. The applications were dismissed.

First-instance judicial review decision. The judgment records that the Supreme Court later decided R (Quila) v Secretary of State for the Home Department [2011] UKSC 45, whose implications were considered in written submissions.