The Supreme Court has rejected a challenge against an immigration rule requiring people to be able to speak English before coming to the UK to live with their spouse.
Five justices in London were urged to rule that the pre-entry measure is “unreasonable, disproportionate and discriminatory”.
Today, the panel of judges, headed by the court’s president Lord Neuberger, unanimously dismissed an appeal by two wives who are British citizens.
Their husbands, who cannot speak English, are foreign nationals and wish to join them in the UK.
Mrs Saiqa Bibi and Mrs Saffana Ali both claimed the requirement breaches their right to a private and family life under article 8 of the European Convention on Human Rights (ECHR).
It is said in both cases that it would not be feasible for their husbands to pass a test before coming to the UK.
But the Supreme Court has decided that the rule does not infringe article 8.
Although the Supreme Court rejected the challenge against the rule itself, the judges have asked for further submissions from the parties on “whether a declaration should be made that the operation of the guidance in its present form is incompatible with article 8 rights where compliance with the requirement is impracticable”.
The Supreme Court judgment follows earlier rulings in the High Court and Court of Appeal that there was no disproportionate interference with family life.
The justices declared today that the “rule itself is not disproportionate”.
But Lady Hale, deputy president, suggested that the appropriate solution to avoid infringements in individual cases would be to “recast” the guidance to grant exemptions in cases where compliance with the requirement is impracticable.
One remedy might be for the court to declare that the present application of the guidance is incompatible with the rights of individuals in such circumstances.
Lord Neuberger agreed that the guidance “seems bound to result in the infringement of article 8 rights in individual cases”, but said the rule itself was not disproportionate.
Since late 2010 the spouse or civil partner of a British citizen or person settled in Britain has been required to pass an English language test before coming to this country.
Before the amendment to the immigration rules, they were only required to demonstrate such knowledge two years after entering the UK.
In December 2011 a High Court judge in Birmingham dismissed judicial review cases brought by three couples. Mr Justice Beatson then ruled that the requirement did not interfere with their right to marriage, and was legitimate in its aim of protecting public services and promoting integration.
Two of the cases were then taken on to the Court of Appeal, but appeal judges ruled against the two wives in April 2013.
At a hearing earlier this year, Manjit Singh Gill QC, representing Mrs Bibi, told the justices that the right to “married life by living together” was being restricted for the first time in British history by “executive action”.
In written submissions to the justices, James Eadie QC, for the Home Secretary, asked the court to dismiss the appeals. He said the case concerned the provisions of the immigration rules requiring applicants for “spouse visas” to demonstrate that they have achieved a certain level of competence in the English language, subject to certain exceptions.
The visa entitles the spouse to enter the UK for a limited probationary period. After that period is over, the spouse can then apply for indefinite leave to remain if the requirements of the immigration rules are satisfied.
Where an applicant for a spouse visa does not satisfy the pre-entry language requirement, the entry clearance officer “will automatically consider the issue of whether there may be exceptional circumstances” which warrant the grant of entry clearance outside the immigration rules on grounds of Article 8 “because refusal would result in unjustifiably harsh consequences for the applicant or their family”.
Mr Eadie said that, if an application was refused, the applicant can appeal against that refusal on Article 8 grounds.
He argued that the pre-entry language requirement “does not violate” Article 8.
Mr Ali, a national of Yemen who lives in that country, has been described as having no formal education. It is said there is no approved test centre in Yemen which provides tuition in English to the required level.
Mr Bibi is a resident of Pakistan and it is said that the nearest approved test centres are 71 miles (115km) and 88 miles (141km) away. Both men would have to learn computer skills.
Rosie Brighouse, legal officer for human rights campaigners Liberty, said: “This is a careful, nuanced judgment from the UK Supreme Court.
“While we are disappointed the court does not agree with us on the rule’s discriminatory effect, we welcome its recognition that the Home Secretary’s harsh and unreasonable guidance puts many couples in an impossible situation, and may well be unlawful.
“The court has not yet had its final say – and we know many families will wait anxiously for its ultimate decision.”