R (Bibi) v Secretary of State for the Home Department

The Supreme Court dismissed the appeals challenging the pre-entry English language requirement for non-EEA spouses and partners contained in Appendix FM (paras E-ECP 4.1 and E-LTRP 4.1) of the Immigration Rules. The court accepted that the Rule pursues legitimate aims related to early integration, employability and cohesion and that there is a rational connection between the Rule and those aims. Applying the conventional proportionality questions (legitimate aim; rational connection; necessity/less intrusive means; fair balance), the majority held that the Rule is not, in itself, incompatible with article 8 of the European Convention on Human Rights or unlawfully discriminatory under article 14, although its operation under the existing guidance may result in disproportionate interference in a significant number of individual cases.

The court emphasised that the principal legal difficulty lay in the Guidance applying the Rule (the tests for "exceptional circumstances" and routes for entry clearance outside the Rules), which in practice may make exemption unrealistically hard to obtain in circumstances where tuition or testing is inaccessible or prohibitively expensive. The court declined to strike down the Rule but invited submissions on whether a declaration of incompatibility or other remedial declaration should be made in relation to the way the Rule is applied.

Background and procedural posture: These appeals arose from a challenge to the amendment of the Immigration Rules (from 29 November 2010) requiring non-European spouses and partners of British citizens or persons settled in the United Kingdom to demonstrate speaking and listening English at A1 CEFR before entry. The appellants, British citizens married to foreign nationals who had not attempted entry clearance because they believed they could not meet the pre-entry test, sought declarations that the Rule was unlawful. The cases reached the Supreme Court on appeal from the Court of Appeal ([2013] EWCA Civ 322), after first instance judgment by Beatson J ([2011] EWHC 3370 (Admin)).

Nature of claim and relief sought: The appellants sought (i) a declaration that the pre-entry English requirement was an unjustified interference with article 8 ECHR rights; (ii) a related article 14 discrimination claim; and (iii) a common law claim of irrationality.

Issues framed by the court: The court addressed whether the Rule: (a) pursues a legitimate aim (identified as integration, employment prospects, preparation for settlement testing, reduction of vulnerability, benefits to children and reduction in translation costs); (b) is rationally connected to that aim; (c) is no more intrusive than necessary; and (d) strikes a fair balance between individual family life rights and community interests. The court also considered the article 14 argument and the common law irrationality challenge.

Court’s reasoning and disposition:

• Legitimate aim: The court accepted the stated aims as legitimate and sufficiently important to justify interference with article 8 rights.
• Rational connection: A rational link between the pre-entry test and integration objectives was found.
• Necessity/less intrusive means: While acknowledging debate about whether post-entry measures might be less intrusive, the court considered that the imposition of a pre-entry A1 requirement could reasonably be regarded as within the executive’s margin of appreciation and not manifestly unnecessary.
• Fair balance/proportionality: The critical concern was the operation of the Rule under the Home Office Guidance: the exceptional-circumstances and entry-outside-the-Rules routes were drafted so narrowly that many individual cases (for example, where no local tuition or test centre exists, or costs are inordinate) risk unjustifiable interference with article 8. For that reason the majority held the Rule itself lawful, but identified a real risk that its application under present guidance would breach Convention rights in significant numbers of cases.
• Article 14 and common law: The court held that the discrimination complaint added nothing beyond the article 8 analysis and rejected the common law irrationality challenge.

Remedial posture and further steps: The court dismissed the appeals on the merits but invited further submissions from parties on whether and in what terms a declaration of incompatibility or other relief should be made in relation to the Guidance and its operation, recognising changing facts on the ground and the need for precise drafting of any declaration.

The appeals were dismissed. The court held that the pre-entry English requirement in Appendix FM (paras E-ECP 4.1 and E-LTRP 4.1) is lawful: it pursues legitimate aims (notably early integration), is rationally connected to those aims and is not disproportionate as a rule. However, the existing Guidance for applying exemptions and considering exceptional circumstances is narrowly drafted and likely to produce breaches of article 8 ECHR in a significant number of individual cases; the court therefore declined to quash the Rule but invited submissions on whether a declaration concerning the Guidance should be made.

First instance: Beatson J, R (Chapti) / related proceedings, [2011] EWHC 3370 (Admin). Court of Appeal: [2013] EWCA Civ 322. Appeal to the Supreme Court: [2015] UKSC 68 (this judgment).