Supreme Court Rules Migrants Must Speak English To Join Spouses UK

The Supreme Court yesterday ruled that anyone wishing to join their spouse in the UK must learn English and pass the required English language test.

The supreme court has rejected a challenge against an immigration rule requiring spouses to be able to speak English before moving to the UK.
The five Judges unanimously rejected claims by Saiqa Bibi and Saffana Ali that the pre-entry English test breached their right to private and family life under Article 8 of the European Convention on Human Rights.

“Unreasonable, Disproportionate and Discriminatory”

The two women, who are both British Citizens, argued that the language requirement was “unreasonable, disproportionate and discriminatory” and stated that their spouses, Bibi and Ali, who are from Pakistan and Yemen respectively, would have to learn computer skills and travel great distances to take the required English tests.

The requirement was further argued to be unreasonable due to the individual circumstances of the men. Ali, was described as having no formal education. There is no approved test centre in Yemen that provides tuition in English to the required level. Meanwhile, in Pakistan, the nearest test centre for Bibi was 70 miles away.

The English Language Requirements

Non-EEA spouses of a British citizen or a person settled in the UK have been required to sit a recognised English language test before being granted entry into the country since late 2010.

The key objectives of introducing a pre-entry English requirement for spouses were said to be:

To assist the spouse’s integration into British society at an early stage;
To improve employment chances for those who have access to the labour market;
To raise awareness of the importance of language and to prepare for the tests they will need to pass for settlement.

Both the High Court and the Court of Appeal had ruled against the women in previous judgments, declaring that the requirement did not interfere with the right to marriage and was legitimate in its aim to protect public services and promote integration.

Door Left Open for Claims of Impracticality

Despite dismissing the appeals, the Supreme Court did request further arguments about how the scheme operated and declared the Home Office’s “harsh and unreasonable” guidance put many couples in “an impossible situation, and may well be unlawful”. It also stated that exemptions should be made in cases involving where the requirement was impractical as in these situations the principles contained in Article 8 may well be breached.

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 that warrant the grant of entry clearance outside the immigration rules on grounds of article eight “because refusal would result in unjustifiably harsh consequences for the applicant or their family”.

High Court judge admonishes immigration solicitors

The latest in the increasingly long line of cases in which the judiciary has administered public dressings down for immigration lawyers is R (On the Application Of Akram & Anor) v Secretary of State for the Home Department [2015] EWHC 1359 (Admin). The cases are often referred to as Hamid cases, after the first such case, Hamid [2012] EWCA 3070 (Admin).

Sir Brian starts this latest judgment with a general warning or principle:

There is a pressing need for legal representatives acting for claimants in judicial review proceedings to do so in a professional manner both towards their clients but also towards the Court, bearing in mind that the paramount duty of all legal representatives acting in proceedings before courts is to the Court itself. The need for this warning to be taken seriously increases as the resources available to the Courts to act efficiently and fairly decreases. If the time of the Court and its resources are absorbed dealing with utterly hopeless and/or unprofessionally prepared cases, then other cases, that are properly advanced and properly prepared, risk not having devoted to them the resources that they deserve.

…what has happened in these cases follows what has become an all too familiar and depressing pattern in which the legal representatives demonstrate a remarkable lack of knowledge and/or regard for the substantive and procedural rules governing claims for judicial review.

The case had earlier been refused permission and described by Mr Justice Jay as “a complete shambles”, who ordered a Hamid hearing.

In this case the judgment records that two brothers were represented by solicitors Rashid and Rashid Solicitors, said to be initially of 21-23 Tooting High Street, London but at the time of judgment of 190 Merton High Street, South Wimbledon, London. The judgment is critical of the firm and the possible lack of immigration law training by the caseworker who made the application in question is one of the issues identified. The principal, Mr Rashid, accepted that the application to court were “badly drafted and failed to identify the relevant principles”.

Sir Brian also expresses in the judgment wider concerns about the vulnerability of clients in immigration law. In this case £5,000 was thought to have been paid for the application and the services of “experienced counsel” had been offered but not delivered, according to a letter received by the court directly from the claimants themselves. On this Sir Brian says

29. Prima facie the relationship between a solicitor and client is governed by contract and not something with which the Court will ordinarily intervene. However, in circumstances such as have arisen in this case, there is clear concern (I say no more than “concern” on the basis that this court is not in a position to make a finding of fact) that legal representatives may be incentivised to use and abuse the processes of the Court for personal gain. As such, in principle, even relations between solicitor and client can be such as to fall within the legitimate concern of the Court in the exercise of its inherent jurisdiction to govern conduct before it.

30. Persons seeking to avoid being removed from the jurisdiction in the position of the Akram brothers are frequently extremely vulnerable. They are subject to the rigours of the immigration system. They may well be in detention facing imminent removal. If not in detention, they may be destitute and unable to work. They are likely to be desperate. They are thereby at risk of being easy prey to those who would extract fees upon the promise of experienced counsel being instructed to fight the case vigorously. When (or if) they discover they have been misled, it may be too late and they may well have long departed these shores, often through coercive removal. In the present case, the removal date of the Akram brothers was in March of this year. It may be a statement of the obvious, but they would not, in such circumstances, be around to challenge the solicitors or seek repayment of fees or make their own complaints to the SRA, although in this case, because of the analysis of the case provided by Jay J, they have done so.

The SRA is already said to be investigating the case. The judgment ends with an order that the judgment and documents be passed to the SRA. Counsel for Rashid and Rashid had declined to hand a copy of the skeleton argument to a member of the press at court so the court ordered a copy be made available from its own file. The case has been reported elsewhere, including on Legal Futures and Al’s Law.

Immigration appeal hearings delayed up to nine months

12 October 2015

Immigration appeal hearings are being put back as far as next summer as the courts struggle to deal with a mounting workload.

The Gazette understands that HM Courts & Tribunals Service has drawn up a list of ‘priority’ cases to ensure the most urgent issues are dealt with. Cases involving children or detention are given top priority, with cases involving deportation and spouse or partner appeals from abroad given bottom billing.

In an email to practitioners sent last week, subsequently recalled but seen by the Gazette, a courts service chief admitted the delays were ‘unacceptable’.

Alison Harvey, legal director of the Immigration Law Practitioners’ Association, said there is now a serious problem with substantive hearings being adjourned or postponed.

‘[Delays] result in distress and anxiety for clients, their family members and their employers,’ she said. ‘Graduated fixed fees for legal aid work in immigration cases, and the purses of clients paying privately, are put under pressure as lawyers must manage a case over an extended period.’

She noted that during the passage of the 2014 Immigration Act, which asked the courts to consider parliament’s view of ‘public interest’ when considering human rights claims, experts warned the changes were not properly analysed.

‘The delays seem to be part of the so-called ‘hostile environment’ the government is seeking to create,’ he said. ‘Unfortunately this extends to lawful migrants and their British families, who are in effect collateral damage.

A spokeswoman for HMCTS said the volume of new immigration and asylum chamber appeal received has fallen since July 2014, but that the ‘current flow’ of appeals has pushed listings back.

‘HMCTS is confident that we have sufficient capacity to deal with the number of appeals expected without increasing the current outstanding caseload.

‘We are preparing to put additional court time in place between April and July 2016 to make sure waiting times do not increase.’