Chapti/Bibi

In part 1 we looked at Quila, the age-21 requirement on sponsoring foreign partners.

This part sees an analysis of the Chapti/Bibi hearing at Supreme Court, to do with the Home Office introducing a pre-entry language test.

Bibi – if it ain’t broke, why fix it?

25-26 February 2015 saw the case heard at the Supreme Court.  You can view the full webcast of the hearing online.

The case deals with the issue of the rights of British citizens, settled persons and refugees to make a reality of their married life with a person from abroad by living together in the UK.

Since 1 October 2010, the Home Office has required foreign spouses pass an English language test prior to coming to the UK.  Previously language tests needed passing for permanent residency and citizenship, which was only once the person was already in the UK.  Now the requirement is imposed on those who simply want to enter the UK in order to live with their partner.

For some time, there has been discussion around encouraging new arrivals to learn the local language across Europe.  The French and Danish systems encourage learning the language but do not imposing any prior conditions; entry is permitted so long as the foreign partner takes lessons once in the country.

However, the UK model resembles the Dutch and German ones, imposing a pre-entry condition, which for the latter two are now the subject of investigation by European Commission which considers such requirements to be contrary to the Family Reunification Directive (which UK has opted out of).  So why adopt Dutch and German models? Encouraging is fine. But condition = barrier, which EC said in its submission is unacceptable.  Vast majority of European countries have no such pre-entry condition – post-entry yes!

Only since 1905 has there been conditions on entry of foreigners and whilst the UK requirement is a basic one, at Level 1, there were several arguments put forward by the Bibi lawyers against such rules, main ones which I picked up as:

1)   If it ain’t broke why fix it?

Is interference justified?

Previously, people for the most part were passing the post-entry tests anyway – so is it reasonable to keep out vast majority because of a tiny number who didn’t pass post-entry tests?

Vast majority of consultation responses were against a pre-entry requirement.  The government ignored this, citing self-selection (!) which suggests to me that perhaps the SSHD had already decided to implement this policy, and hence the consultation was in itself a farcical process, merely serving as a tick-box exercise, rather than having any actual influence on the chosen policy. 

The post-entry test was found to be working, with Home Office's own Equality Impact Assessment of October 2010 showing that in 2007 the number of spouses/partners failing the post-entry test was 3,245; in 2008 the equivalent figure was 995, and in 2009 it fell again to 470.   This suggests people not passing a language test once in the UK has been declining sharply to a ‘miniscule’ number, thus not justifying the introduction of a pre-entry test.  Given there has also been a rise in the probationary period from two to five years, the Bibi lawyers argued that chances of passing the test are even higher now as entrants have even longer now to reach the required level of English for settlement purposes.

                                              

HO claimed these statistics – their own! - were so favourable for the appellant because the ESOL test was a relatively easier test though this was countered by the Bibi lawyers that then the government should have adopted another action to do something about the simplicity of the test rather than impose a pre-entry requirement!

One of the judges asked for statistics on how many people don’t sit the post-entry test once in the country, instead perhaps choosing to extend their leave to remain.  The Bibi lawyers pointed out that the onus was on the government to provide this info in order to justify their departure from the previous policy and that as the stats showed that the vast majority are in fact passing the test after entry, how could the HO justify keeping out this vast majority simply to guard against the possibility of a few not passing or sitting the test?  This represented a huge interference with the rights of a large number of people when the potential problem is in fact so small (i.e. people not sitting the test) that it hasn’t even been quantified!

2)   Level 1 is the same as that imposed on those who wish to come to the UK solely to work.

Therefore Home Office is, in effect, equating family immigration with those who come here to work, which is not what protecting family life is about.

Additionally, what is the point of a requirement that is considered too basic to actually help someone get a job; a level that would far more easily and quickly be reached in the UK, with the support of the UK spouse and surrounded by the language.

The expert witness, Dr Helena Wray, indicated that the pre-entry test is at such a level that it is of very little value as a means of communicating with English people in the United Kingdom: and that English is much more quickly and fully mastered once a person is within the community where that language is in everyday use.

However not all those coming here will seek to settle here; they may well leave in a couple of years.

3)   What drove the Home Office to impose a pre-entry requirement?  The reason given by the Home Office is integration, to help make lives of immigrations better – to help them speak to neighbours, be part of civic society, get a job….

The Bibi lawyers spent some time labouring this point, and I think it’s because it’s important that the government is not saying (unlike their reasoning for the £18,600 financial requirement) that its justification for a pre-entry requirement is because it has the right to control immigration or meet a net migration target etc., because then if such things are consequences of the requirement, then it’s unintended and thus more scope for courts to intervene.

Lawyers insisted that family life is not about coming here to work, especially when the family migration rules also require the sponsor to be earning a level of money which means the foreign spouse may not in fact even need to work!  Bibi lawyers argued rules changed by stealth given the pre-entry requirement, the £18,600 income requirement as well as the increase in probationary period to ILR from two to five years.

Whilst the Court of Appeal deemed the pre-entry requirement lawful, one judge did dissent, and indicated that it did not seem sensible to make people from abroad go to the trouble of learning English at centres which may be far away, representing obstacles to obtaining the necessary tuition and testing, combined with a society where there may be cultural and financial pressures, and when the UK sponsor would need to be send money outside Britain to help their spouse learn English.

The lawyers conceded that this action may see intelligible as a step against forced/sham marriages or where someone comes here to work or study to we ensure they can speak the language before coming in; but it is less acceptable in genuine cases where the goal is supposedly to make the incoming partner’s life better.

However if the true motive was integration, then as European parliament said, take in-country measures to encourage people to take part in society.

4)   Rules result in discrimination: direct and indirect.

The pre-entry requirement is not imposed on all foreign partners.  There are exemptions for those who:

·       pass an approved English language test with at least CEFR level A1 in speaking and listening

·       having an academic qualification that was taught in English and is recognised by UK NARIC as being equivalent to a UK bachelor’s degree i.e. a degree with no allowance for professional or vocational qualifications.

·       Are a national of Antigua and Barbuda, Australia, the Bahamas, Barbados, Belize, Canada, Dominica, Grenada, Guyana, Jamaica, New Zealand, St Kitts and Nevis, St Lucia, St Vincent and the Grenadines, Trinidad and Tobago, USA

In court arguments were made to the effect that the rules assumed all nationals from the exempted countries speak English to a certain standard, with no allowance for the fact that some won’t in fact speak any English at all e.g. those from the French speaking part of Canada, or that % of people passing the post-entry test from India (not exempt) is higher than the % of people passing the post-entry test from Jamaica (which is exempt!).

  

The judges:

The judges asked what the Bibi lawyers thought should happen to those who either don’t sit a post-entry test or overstay their visa.

It was agreed that applicants who choose not to sit the post-entry have the option to re-apply for leave to remain as an extension of their existing visa, however this would mean the applicant could not avail themselves of the benefits that come with ILR and indeed, subsequent citizenship.  What the lawyers didn’t point out was however is that renewing the visa is very expensive!  I believe the judge here was trying to ascertain that someone with three kids in the UK who after 5 years on his/her spouse visa doesn’t pass the post-entry test is unlikely to be deported because they will be able to just extend their leave to remain.

Bibi lawyers also agreed that that those who overstayed their visa should be removed, but prodding further on what-if scenarios of what should happen if overstayers had children, agreed that the starting point should be removal but then cases should be considered on their individual merits for discretionary leave.

 Watch this space for the arguments put forward by the Home Office in its attempt to justify the pre-entry requirement.