R v Secretary of State for the Home Department

An Immigration Rule challenged under article 8 is not invalid merely because its application may be disproportionate in individual cases. It must be incapable of proportionate operation and inherently unjustified in all or nearly all cases.

A pre-entry English-language requirement for foreign partners was capable of furthering integration and social cohesion proportionately. The executive enjoyed latitude when predicting the effects of this social policy. However, guidance must permit a case-specific exception where access to tuition or testing is not reasonably practicable without inordinate expense. Nationality-based exemptions were directly discriminatory but justified as a reasonable proxy for familiarity with English.

R (Ali) v Secretary of State for the Home Department and R (Bibi) v Secretary of State for the Home Department concerned British citizens whose foreign husbands had not applied for entry clearance because they believed that they could not satisfy the pre-entry English-language requirement in the Immigration Rules. The proceedings challenged the Rule in the abstract and proceeded on assumed facts.

Beatson J dismissed the challenge in [2011] EWHC 3370 (Admin), [2012] 2 All ER 653. A majority of the Court of Appeal agreed in [2013] EWCA Civ 322, [2014] 1 WLR 208.

The Supreme Court considered whether the Rule unlawfully interfered with family life under article 8 of the European Convention on Human Rights, unjustifiably discriminated under article 14, or was irrational at common law. It also considered whether the current administrative guidance provided adequate protection against disproportionate outcomes in individual cases.

1. Disposition. The appeals were dismissed unanimously. All five Justices agreed that paragraph E-ECP 4.1 of the Immigration Rules was lawful and should not be struck down. The court reserved the possibility of declaratory relief concerning the associated guidance and invited written submissions.
2. Article 8 framework. Marriage normally entails family life and cohabitation, but article 8 does not impose a general obligation upon a state to admit a foreign spouse to the couple's chosen country. Admission cases require a fair balance between individual family life and the interests of the community. The domestic proportionality inquiry addresses the importance of the objective, rational connection, necessity and fair balance. A Rule challenged in the abstract can be invalidated only if it is incapable of proportionate operation and inherently unjustified in all or nearly all cases.
3. The Rule. Promoting the early integration of incoming partners and wider social cohesion was sufficiently important to justify some interference with family life. A basic pre-entry language requirement made at least some contribution to that objective and was rationally connected with it. The majority comprising Lord Hodge, Lord Hughes and Lord Neuberger also emphasised the wide latitude due to the executive's predictive assessment of an experimental social policy where reliable quantitative evidence was unavailable. The evidence did not establish that the Rule was disproportionate in all or nearly all cases.
4. The guidance. The Justices nevertheless agreed that the narrow guidance was likely to produce a significant number of article 8 violations. A fair balance may be absent where suitable tuition or the prescribed test is not reasonably accessible without inordinate travel, accommodation or other expense. Lady Hale, with Lord Wilson, considered that the guidance should provide a predictable exemption where compliance was genuinely impracticable. Lord Hodge, with Lord Hughes, favoured a narrower amendment directed to reasonable practicability and inordinate cost. Lord Neuberger shared the concern about inaccessible tuition and testing and considered declaratory relief potentially appropriate.
5. Article 14 and common law. Exempting nationals of listed English-speaking countries constituted direct nationality discrimination. It was justified because nationality of such a country was a reasonable bright-line proxy for sufficient familiarity with English. The article 14 and common-law challenges therefore failed. No declaration concerning the guidance was made without further submissions.

• United Kingdom Supreme Court: In [2015] UKSC 68, the appeals were dismissed unanimously because the Rule was lawful. The court invited submissions on possible declaratory relief concerning the Guidance.
• Court of Appeal: By a majority, the court rejected the challenge to the Rule in [2013] EWCA Civ 322, [2014] 1 WLR 208.
• High Court, Administrative Court: Beatson J dismissed the challenge in R (Chapti) v Secretary of State for the Home Department (Liberty intervening) [2011] EWHC 3370 (Admin), [2012] 2 All ER 653.