Challenge the amendments to paragraph 281 of the Immigration Rules

Danielle Cohen
By Danielle Cohen Immigration Law Solicitor Linkedin
Danielle Cohen has over 20 years of experience as a lawyer and a reputation for offering professional, honest and expert advice.
19 December 2011

This case was a challenge to the amendments to paragraph 281 of the Immigration Rules which were laid before Parliament on 1st October 2010 and came into effect on 29th November 2010.  The amendments which we are going to refer to as the new Rule requires the foreign spouses or partners of British citizens or persons settled in the UK applying to come to the UK as a spouse to produce a certificate of knowledge of English language to a prescribed standard.  Before those applying for indefinite leave as spouses and partners were only required to demonstrate this knowledge two years after entering the UK.  The new entry test assesses both speaking and listening.  The level required is lower than that required in the post entry test required for those applying for settlement and is subject to a number of exceptions.

The claimant maintains that the new rule is disproportionate and an unlawful interference with their and their spouse’s human rights and or irrational under well known and long standing common law principles.  The Home Secretary contends that it is a lawful way of promoting the integration of foreign spouses and partners into the community and protecting public services.

It was submitted on behalf of the claimants that the new rule interfered with their rights under Article 8 and 12 of the European Convention of Human Rights to marry and live together in this country.  This is argued because a significant number of applicants for spouse visas will find it difficult, if not impossible in practice to satisfy the new rule.

The Judge concluded that the Rule providing for a pre-entry English language requirement is not a disproportionate interference with Family Life and is justified.  It is rationally connected to its aim, which are legitimate, and which the Home Secretary and her predecessor regard as important aims.  It makes due allowance for the generality of exceptional cases.  Furthermore the Judge concluded that the exemptions based on nationality and those based on academic qualifications from specified countries are not direct discrimination based on nationality, because those who are exempt are not in a relevantly similar situation to those who are exempt.

He also turned to the question of nationality and ethnic origin and said that there are persons of all nationalities and ethnic origins who speak English to the required level.  The difficulties of those who do not and have difficulty meeting the requirement are the result not of their nationality or ethnic origin, but their existing level of English.  The logic of the claimant’s position is that any language requirement would be contrary to Article 14 and the Judge concluded this is manifestly not so.  He further rejected the argument that the rule discriminates against persons with disabilities and that an exemption of only those whose disability makes it unreasonable to learn English sets the threshold too high.