English language testing for spouses found to be lawful, writes Shara Pledger
The High Court has ruled that the controversial English language requirement for foreign spouses of settled UK residents is not unlawful. R (on the application of Chapti & Ors) v Secretary of State for the Home Department & Ors [2011] EWHC 3370 (Admin) challenged whether the November 2010 requirement, which requires individuals applying for spouse visas to have a certain level of English language ability before coming to the UK, was discriminatory.
Not everyone has to meet the new requirement. Individuals who are aged over 65 are exempt for example, as are those who come from ‘majority English speaking countries’ such as the USA. In addition, nationals from the small number of countries which have no suitable testing facilities are excused as they have no means of meeting the new rule.
The pre-November 2010 system required husbands and wives to demonstrate their knowledge of English two years after their arrival in the UK. The claimants in Chapti argued that the new requirement to demonstrate this ability much earlier disproportionately interfered with their family lives protected by Article 8 of the European Convention on Human Rights. They also argued that the new requirement breached Article 12 of the Convention, their right to marry. The case was brought to see whether couples who are not exempted from the test, but who are unable to meet the requirement simply due to lack of skills, are being unlawfully penalised and discriminated against.
The findings of the High Court were clear. The language requirement was not found to breach the right to marry, and although it was accepted that family life might be disrupted, this in itself was not thought to breach human rights. The UK government argues that the new requirement is in the interests of promoting integration and protecting public services, and the Court accepted that these are legitimate and lawful aims. No discrimination on the basis of nationality was found, nor on ethnic origins or disability. As such, the legal position is that you either meet the requirement or you don’t; while there might be exemptions, there are no exceptions.