A Tricky Case of English Test and Financial Means
By Danielle Cohen Immigration Law Solicitor LinkedinDanielle Cohen has over 20 years of experience as a lawyer and a reputation for offering professional, honest and expert advice.
We acted for a Sudanese national who was residing in Sudan. He is married to a dual British/Sudanese national. The couple met in Sudan when the sponsor was visiting there for the first time. The relationship developed and the sponsor returned to Sudan several times. They got engaged and got married. There are two children of the marriage. Both children are British nationals.
Before instructing us he submitted a visa application in 2018 to visit his family in the UK and that was refused. He then made an application to join his wife in the UK under Appendix FM on 4th April 2022 and we assisted him with this application and with a successful appeal. The respondent (i.e., Home Office) refused the application in November 2022 on two grounds. Firstly, regarding the minimum income, the financial requirement was not met. The respondent position was that the sponsor’s income did not meet the required level. However, there was evidence of a job offer for the appellant in the UK together in the application, but the respondent failed to consider this evidence in their decision because they did not find that there were exceptional circumstances. The second problem was that the sponsor did not pass an English test. The hearing took place via hybrid and the appeal was successful but of particular importance was how we had argued the financial requirements and the English language requirement. Our barrister submitted that the appellant has shown that he is exempt from meeting the English language requirement because there were exceptional circumstances as to why he could not meet the requirements at the date of the application. He referred in his skeleton argument to the fact that the appellant is a Coptic Christian and cited the country guidance case MG (Christian, including Coptic Christians) v Sudan CG  and referred to the country expert report from Peter Verney, commissioned for this appeal.
Mr Verney detailed the discrimination against Coptic Christians in Sudan. The fact that they face worsening conditions and have been targeted for religious discrimination and harassment by Islamic extremists linked to the Government of Sudan for the past three decades. The barrister referred to the appellant’s isolated home area in Sudan, his lack of access to spoken English courses and English tuition and his disadvantaged position as a Coptic Christian. The expert also referred to more recent events in Sudan due to the situation there and the appellant’s vulnerable position. The respondent argued that at the date of the application in April 2022, the appellant was residing in Sudan and previously visited Egypt and Turkey. Therefore, given that he had not attempted to undertake any online tuition, given that he has taken some English classes previously in Sudan and given that there was an accepted ETS test centre in Khartoum, (but that was suspended during Covid 19). The Judge found that not all the factors advanced as obstacles prevented the appellant from learning English, even taken cumulatively. Therefore, whilst the Judge accepted that there were obstacles, he did not characterise them as “exceptional” and therefore the appellant was not exempt from taking the English test.
In respect of the financial requirements, the sponsor accepted that she did not meet the financial requirements as at the date of the application, but there was third party support available and that the respondent failed to take the relevant job offer contrary to the case of MN (Lebanon) And Ors v SSHD . The respondent’s representative on the day stated that the respondent did not consider the job offer because they did not find exceptional circumstances in the appellant’s case. The Judge was of the view that the respondent provided inadequate reasoning for this decision as to why she did not find there were exceptional circumstances and did not consider adequately all the evidence the appellant submitted with the application in relation to the circumstances of his family life with the sponsor and the children, which the Judge found, in fact, amounted to exceptional circumstances. The respondent never cited the evidence or documents they took into consideration when she found that no exceptional circumstances existed and did not explain in their decision letter why they came to that view.
The Judge found that the respondent did not engage with all the evidence of supporting documentation contained within the appellant’s application, did not consider the childrens best interests as a primary consideration, and did not take into account the appellant’s prospective offer of employment.
The appeal was allowed because of multiple and cumulative factors taken together and the evidence which showed not only very significant obstacles in the appellant and sponsor being able to continue family life in the manner in which they have done to date, but also the exceptional circumstances which would render a refusal of entry clearance to the appellant a breach of Article 8 ECHR, because there would be unjustifiably harsh consequences for the sponsor and her children whose interests are a primary consideration. It was noted that the respondent had not evidenced how they considered the appellant’s British children’s interests as a primary consideration in coming to her decision that entry clearance was a proportionate interference with Article 8 of the ECHR.
The only factor that was in favour of the respondent was the fact that the appellant still did not satisfy the relevant immigration rules because of his inability to pass the required English language test. However, it was noted that once the appellant arrives in the UK he is likely to be conversing daily with his children and others who speak fluent English. The Judge also found that the appellant met the minimum requirement at the date of the application because of the third party support but in any event, at the date of the appeal she met the minimum income requirement through her own employment that she gained after the appellant’s application was submitted.