Barriers to entry: spouses’ English tests upheld (Part1)
Language is the commonest human currency and it has an historical connection to culture and politics. Ostensibly, English remains the lingua franca of the world. Yet its imposition upon people – often far away in a Gujarati, Punjabi or Yemeni town or village – in order to allow them to join their spouse in the UK is synonymous with cultural imperialism. Considering that the majority of developing countries’ populations are illiterate, the expectation that a grown up person, or someone in old age, can learn English to come to the UK to cohabit seems utterly arbitrary, discriminatory and unfair.
Such arguments, however, could not convince Birmingham’s High Court in R (Chapti & Ors) v SSHD [2011] EWHC 3370 (Admin), a test case where Mr Justice Beatson found that the aims of the pre-entry English language tests (set at level A1 of the Common European Framework for Referencing) for spouses contained in immigration rule 281 – and like requirements for civil partners, fiancé(e)s, proposed civil partners, unmarried and same sex partners – were “fundamentally benign” (at paragraph 88). The tests (or the “new rule”) were introduced into the immigration rules in November 2011.
Under the rules exemptions exist for applicants (a) aged 65 or above; (b) with a physical or mental condition; (c) with exceptional compassionate circumstances; (d) from certain English speaking countries; (e) with acceptable foreign academic qualifications (confirmed by NARIC); and (f) from the 30 or so countries without test centres – “automatically” satisfying point (e).
It is noteworthy (at paragraph 55) that a Pakistani woman whose gunshot wounds to the head resulted in partial paralysis and no speech could exceptionally qualify only when assisted by a verifiably genuine medical report, whereas others in similar predicaments without verifiable documents had less luck!
The decision sits uncomfortably with the UK’s thriving immigrant community and organisations such as Liberty and JCWI – which intervened in the case. Despite his avuncular (and in places inflexible) judgment, Beatson J granted the claimants permission to appeal.
The three claimants brought judicial review proceedings against the home secretary on the grounds that the tests violated their Convention rights by disproportionately breaching their Article 8 rights to a family life and the right to marry under Article 12. Equally, it was claimed that the requirement was discriminatory and Article 14 was therefore also engaged. Moreover, the claimants raised irrationality but the home secretary saw the measure as facilitating integration.
No matter what the pros of the debate might be, the rule will inevitably prejudice the poor more than the rich because the tests cost money and learning English abroad is not cheap. Moreover, test centres are not universally available. Yet in the home secretary’s view the interference with the claimants’ Article 8 rights was proportionate because the UK was not obliged to respect the choice of the claimants’ country of matrimonial residence.
In the oral hearing in July, Beatson J agreed to give his judgment after the UK Supreme Court handed down judgment in R (Quila) v SSHD [2011] UKSC 45 so as to allow the parties to make written submissions on its implications for the three claimants.
In addition to the above grounds the claimants, relying on the CJEU’s decision in C-34/09 Ruiz Zambrano, also raised discrimination – in comparison with Union citizens’ spouses (who are excluded from the requirement’s ambit) – but the home secretary riposted this by citing C-434/09 McCarthy and submitted that where a British citizen’s spouse’s right of free movement had not been exercised no obligation to grant immigration status was owed. The parties agreed to postpone proceedings on the EU ground until a more propitious moment in the ongoing case of Bhavyesh CO/4526/2011.
Just a glance at paragraphs 24 – 27 of Beatson J’s judgment reveals the horrific circumstances which Gujarati applicants for entry clearance routinely face. Mrs Chapti, aBritish Overseas citizen who was subsequently naturalised as a British citizen and who married in 1976, repeatedly battled the authorities to reunite her family. Failing to get entry clearance for her husband in 2007, Mrs Chapti abandoned the appeal and her husband and son reapplied in late 2009; the applications were refused again (on maintenance grounds).
Upon appeal an Immigration Judge added insult to injury by finding the Chaptis’ subsisting marriage to be legally invalid and remarked that outside of a Gujarati environment Mr Chapti would be unable to work in the UK because he spoke no English: the case is presently in Upper Tribunal proceedings. (It is usual for people from India, especially Gujarat, to suffer terrible immigration problems and spend large sums of money in trying to join their loved ones in the UK: hence proceedings in immigration tribunals are routine for most families.) Judicial review proceedings were nevertheless taken because Mr Chapti would not be able to satisfy the requirement without which the fee for his application (£810) would be wasted.
(Original article: http://asadakhan.wordpress.com/2011/12/19/barriers-to-entry-spouses-english-tests-upheld/
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