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

A pre-entry language condition for entry as a spouse or partner may engage article 8 even if the interference is less than colossal. Its lawfulness depends on justification under article 8(2).

In reviewing a general and benign social-policy measure, the court must make an objective proportionality assessment. It may nevertheless accord substantial latitude to predictive governmental judgments. The State need not establish future benefits by unobtainable empirical proof. A rudimentary pre-entry English requirement, with exemptions and an exceptional-compassionate-circumstances provision, was proportionate to integration and economic-well-being aims.

Nationality-based exemptions which rationally identify likely English speakers may use permissible bright lines. They did not breach article 14. Article 12 did not independently confer a right for an overseas spouse to enter the United Kingdom.

The appellants were British wives whose husbands lived respectively in Yemen and Pakistan. Neither husband spoke English and both were said to face serious practical obstacles in obtaining the tuition and approved test certificate required before entry as a spouse.

They challenged amended Rule 281 of the Immigration Rules, which introduced a rudimentary pre-entry English-language requirement subject to specified exemptions. Neither husband had applied for entry clearance. The assumed facts were therefore used only to test the Rule’s facial lawfulness.

Beatson J dismissed the judicial-review claims on all grounds: [2011] EWHC 3370 (Admin). The appeal concerned whether the Rule unlawfully interfered with articles 8, 12 or 14 of the European Convention, or was unlawful at common law.

1. Appeals dismissed by a majority. Maurice Kay LJ, with whom Toulson LJ agreed, held that amended Rule 281 was lawful. Sir David Keene dissented on proportionality and would have allowed the appeals.

2. The Rule could force spouses to live apart or require the settled spouse to relocate abroad. That was a sufficient interference with family life under article 8(1). The description of the interference in [2012] 1 AC 621 as colossal was descriptive, not a heightened threshold for engagement. Insignificant interferences do not engage article 8, but the assumed circumstances required justification.

3. The interference was in accordance with the law and pursued legitimate aims, notably integration and the economic well-being of the country. The court applied the ordinary proportionality questions: importance of the objective, rational connection, necessity and fair balance. Convention proportionality requires an objective value judgment, not a merits review.

4. In the setting of general social policy, the Secretary of State was entitled to substantial latitude for predictive judgment. The court rejected a requirement for conclusive empirical proof before a benign reform could be introduced. The evidence, impact assessments, low level of the test, exemptions and exceptional-compassionate-circumstances provision justified the pre-entry requirement. It was materially different from the absolute age-based bar considered in [2012] 1 AC 621.

5. Article 12 did not provide an independent right for an overseas spouse to enter the United Kingdom in order to marry or cohabit there. The nationality and qualification exemptions did not create unlawful direct discrimination. They were rational bright lines identifying persons likely already to meet the language standard. Any difference of treatment was in any event objectively justified and proportionate under article 14.

6. The conclusion concerned a facial challenge to the Rule. On determined facts, an individual applicant could still establish that its application was unlawful, including where the welfare duty under Borders, Citizenship and Immigration Act 2009 was material. The common-law irrationality challenge failed a fortiori.

• Court of Appeal (Civil Division): By a majority, dismissed the appeals and upheld the lawfulness of amended Rule 281: [2013] EWCA Civ 322.
• Administrative Court: Beatson J dismissed the claimants’ challenges to the amendment on all grounds: [2011] EWHC 3370 (Admin).