At the claimants alleged that the rules requiring a foreign spouse or partner of a British citizen or a person settled in this country to pass a test of competence in the English language before coming to live here were an unjustifiable interference with the right to respect for private and family life, and discriminatory.
Held: The apeala failed. The requirement for a foreign spouse or partner of a British citizen, who was not a national of one of a number of specified majority English-speaking countries and who did not qualify for certain other exemptions, to produce a certificate of knowledge of the English language to a prescribed standard prior before entry, was lawful. However, the guidance issued in relation to the operation of that rule was questionable.
‘It is not enough to say (see para 7.2 of the Guidance . .) that partners are expected to be self-sufficient without recourse to public funds when they come to this country and can therefore be expected to find the resources to meet this requirement. It is one thing to expect that people coming here will not be dependent upon public funds for their support. It is quite another thing to make it a condition of coming here that the applicant or sponsor expend what for him or her may be unaffordable sums in achieving and demonstrating a very basic level of English. Given the comparatively modest benefits of the pre-entry requirement, when set against the very substantial practical problems which some will face in meeting it, the only conclusion is that there are likely to be a significant number of cases in which the present practice does not strike a fair balance as required by article 8.’
‘t an ab ante challenge to the validity of legislation on the basis of a lack of proportionality faces a high hurdle: if a legislative provision is capable of being operated in a manner which is compatible with Convention rights in that it will not give rise to an unjustified interference with article 8 rights in all or almost all cases, the legislation itself will not be incompatible with Convention rights’
Lord Neuberger, President, Lady Hale, Deputy President, Lord Wilson, Lord Hughes, Lord Hodge
[2015] UKSC 68, [2016] HRLR 4, [2016] 2 All ER 193, [2015] WLR(D) 462, [2016] Imm AR 270, [2015] 1 WLR 5055, 40 BHRC 606, [2016] INLR 314, UKSC 2013/0266
Bailii, Bailii Summary, WLRD, SC, SC Summary
European Convention on Human Rights 8
England and Wales
Citing:
Cited – Baiai and others, Regina (on the Application of) v Secretary of State for the Home Department HL 30-Jul-2008
In order to prevent marriages of convenience in the UK the Secretary of State introduced a scheme under which certain persons subject to immigration control required her written permission to marry and would not receive it unless they were present . .
Cited – Quila and Another, Regina (on The Application of) v Secretary of State for The Home Department SC 12-Oct-2011
Parties challenged the rule allowing the respondent to deny the right to enter or remain here to non EU citizens marrying a person settled and present here where either party was under the age of 21. The aim of the rule was to deter forced . .
At first instance – Chapti and Others, Regina (on The Application of) v Secretary of State for The Home Department and Others Admn 16-Dec-2011
Challenge to the amendments to paragraph 281 of the Immigration Rules requiring the foreign spouses and partners of British citizens or persons settled in the UK applying for what I shall refer to as ‘spouse visas’, that is for leave to enter the UK . .
Appeal from – Bibi and Another, Regina (on The Application of) v Secretary of State for The Home Department CA 12-Apr-2013
The applicant appealed against refusal of her challenge to the regulations requiring certain standards of spoken English in foreign spouses seeking to come here to be with their settled or British Citizen spouse.
Held: The imposition of the . .
Cited – Abdulaziz, Cabales And Balkandali v United Kingdom ECHR 28-May-1985
The claimants had each settled within the UK in accordance with Immigration rules, but now challenged refusal of leave to remain to their husbands who sought to join them.
Held: Article 8 did not impose a ‘general obligation on the part of a . .
Cited – Huang v Secretary of State for the Home Department HL 21-Mar-2007
Appellate Roles – Human Rights – Families Split
The House considered the decision making role of immigration appellate authorities when deciding appeals on Human Rights grounds, against refusal of leave to enter or remain, under section 65. In each case the asylum applicant had had his own . .
Cited – Baiai and others, Regina (on the Application of) v Secretary of State for the Home Department HL 30-Jul-2008
In order to prevent marriages of convenience in the UK the Secretary of State introduced a scheme under which certain persons subject to immigration control required her written permission to marry and would not receive it unless they were present . .
Cited – ZH (Tanzania) v Secretary of State for The Home Department SC 1-Feb-2011
The respondent had arrived and claimed asylum. Three claims were rejected, two of which were fraudulent. She had two children by a UK citizen, and if deported the result would be (the father being unsuitable) that the children would have to return . .
Cited – Jeunesse v The Netherlands ECHR 3-Oct-2014
(Grand Chamber) Although the applicant had married and had three children while her immigration status in the Netherlands was precarious, there were exceptional circumstances such that a fair balance had not been struck between the competing . .
Cited – Regina v Edwards Books and Art Ltd 18-Dec-1986
Supreme Court of Canada – the limitation of the protected right must be one that ‘it was reasonable for the legislature to impose’, and that the courts were ‘not called upon to substitute judicial opinions for legislative ones as to the place at . .
Cited – Bank Mellat v Her Majesty’s Treasury (No 2) SC 19-Jun-2013
The bank challenged measures taken by HM Treasury to restrict access to the United Kingdom’s financial markets by a major Iranian commercial bank, Bank Mellat, on the account of its alleged connection with Iran’s nuclear weapons and ballistic . .
Cited by:
Cited – The Christian Institute and Others v The Lord Advocate SC 28-Jul-2016
(Scotland) By the 2014 Act, the Scottish Parliament had provided that each child should have a named person to monitor that child’s needs, with information about him or her shared as necessary. The Institute objected that the imposed obligation to . .
Cited – Hesham Ali (Iraq) v Secretary of State for The Home Department SC 16-Nov-2016
The appellant, an Iraqi national had arrived in 2000 as a child, and stayed unlawfully after failure of his asylum claim. He was convicted twice of drugs offences. On release he was considered a low risk of re-offending. He had been in a serious . .
Cited – MM (Lebanon) and Others, Regina (on The Applications of) v Secretary of State and Another SC 22-Feb-2017
Challenge to rules requiring certain minimum levels of income (Minimum Income Requirement – MIR) for allowing entry for non-EEA spouse.
Held: The challenges udder the Human Rights Act to the Rules themselves failed. Nor did any separate issue . .
Cited – Human Rights Commission for Judicial Review (Northern Ireland : Abortion) SC 7-Jun-2018
The Commission challenged the compatibility of the NI law relating to banning nearly all abortions with Human Rights Law. It now challenged a decision that it did not have standing to bring the case.
Held: (Lady Hale, Lord Kerr and Lord Wilson . .
Lists of cited by and citing cases may be incomplete.
Updated: 26 July 2021; Ref: scu.554898