Language Test Challenged In The High Court

[khastan]

There is a very interesting article in today's Daily Mail. A lawyer is taken the UK government's decision to force people who wish to come to the UK to settle to take a English test to a judicial review through the high courts on behalf of clients rejected for a settlement Visa in the UK because of this test says it "contravenes several Articles of the European Convention on Human Rights - Article 8, the right to family life, Article 12, the right to marry, and Article 14, to be free of discrimination"

its a refusal.............. :crying: 1) the english test she sat is not recognised by the secretary of state but before she took this test with the BRITISH COUNCIL she enquired if this was the right test for settlement visa and was told yes

2) i did not supply enough information as to where i live ie that the place is habitable and there enough room for the 2 of us ie a surveyors report as i live in a council flat why do i need provide a surveyors report; the place is rented, i dont own it, also i never showed i paying the rent,, ie a rent book, as i pay by direct debit a rent book would show nothing as it is not stamped, they could see on my bank statements that i was paying rent to the council, i wrote how many rooms there was in the flat when filling the application in with her,,,,, so what are VFS global there for if they let the application go through like this , thought it there job to make sure everything is fine, now we have to through an appeal,, we are both devastated :crying: :crying:

sorry no good news

phil

Sorry to hear the news!

Check the date the English test was taken. Check it was not suitable at the time it was taken. There have been a lot of changes in approved providers. It may be that the provider was suitable at the time the test was taken. This would be a point to argue.

There is no requirement to provide a surveyors report. This is ludicrous but take photographs, provide a floor plan. Highlighting the direct debit payments would be acceptable for anything but the most hard-core bureaucrat. Ask for a letter from the council ASAP confirming address, payments are up to date etc. It is possible to get the Embassy to review the decision prior to a full appeal or new submission.

If the English test was wrong you may be struggling to get them to review the refusal.

One of the experts should hopefully be alone soon to give their opinions.

[7by7]

There is a very interesting article in today's Daily Mail. A lawyer is taken the UK government's decision to force people who wish to come to the UK to settle to take a English test to a judicial review through the high courts on behalf of clients rejected for a settlement Visa in the UK because of this test says it "contravenes several Articles of the European Convention on Human Rights - Article 8, the right to family life, Article 12, the right to marry, and Article 14, to be free of discrimination"

Be very interesting to see how this fairs; although I expect that it will be some time before we see a final judgment as one side or the other will ensure it goes all the way to the ECHR.

Articles 8 and 12 are qualified rights. From the convention:-

ARTICLE 8

1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. (My emphasis)

ARTICLE 12

Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right. (My emphasis)

ARTICLE 14

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

I'm no lawyer, but as the language requirement applies to all applicants for settlement as a spouse, fiance or partner, except those from an English speaking country, then it may be difficult to prove discrimination. Unless the court take the view that exempting native English speakers makes it so.

I also have in the back of my mind that a similar course was tried when the knowledge of life and language in the UK requirement was introduced for ILR; and it failed.

The Daily Mail article can be found here.

I should add that personally I see nothing wrong in requiring those seeking settlement in any country to be able to communicate in the native language (or one of the native languages) of that country.

[bifftastic]

That is interesting. I've heard from people more knowledgeable in the law than myself, that ECHR section 8 can not be used to circumvent immigration laws. Basically meaning that if you don't meet the criteria and wouldn't qualify for residency, you can't simply quote ECHR section 8 and they have to let you in.

However, if that were the ONLY requirement that the person DIDN'T meet, then that, presumably, would be the basis for this kind of legal challenge. Although it would appear simpler for that person to gain the required level of English rather than to pursue the matter through the courts!

It can, and probably will, be argued that learning English to the required standard is not prohibiting someone from exercising their rights under this convention.

All they have to do is learn some basic English and be able to prove it, by way of a certificate.

I would like to hear anyone's justification for coming to live permanently in the UK and not wishing to be able to speak English.

[theoldgit]

I would like to hear anyone's justification for coming to live permanently in the UK and not wishing to be able to speak English.

I think that is a good point, I think the government justifies their stance by indicating that you really need to speak a modicum of English to survive in the UK, they could argue that those who aren't able to speak English could leave themselves open to abuse and manipulation by others, unfortunately this is a catch all rule, which Thai spouses fall into.

I think the UK Governments response to those who argue that it is their right to live as a married couple in the UK might be that they can live as a married couple in Thailand where the spouse would be comfortable with the language and where English is widely.

I'm not justifying the UK stance on this by the way.

[meatboy]

when my wife went for her interveiw for her sett.visa 1989 she asked to be interveiwed in english,took just 10min.didnt even see me,came back 2pm same day and collected it,and her interveiw was done by no other than mrs clare[feared by thais] she knew her job.so why did they change the system,mind you i knew a few in the uk couldnt speak a word of english so how they got visas one can only guess.

[khastan]

You could also argue that the requirement to speak English before being allowed to settle in the UK discriminates between people that are in the EU and those that are not, and that is where the UK government could have problems now that this ruling is being challenged through the high courts. It could be argued legally also that the requirement to speak English has already been dealt with adequately by the UK government by having to pass a ILR test in English if they wish to remain in the UK .

I would like to hear anyone's justification for coming to live permanently in the UK and not wishing to be able to speak English.

I think that is a good point, I think the government justifies their stance by indicating that you really need to speak a modicum of English to survive in the UK, they could argue that those who aren't able to speak English could leave themselves open to abuse and manipulation by others, unfortunately this is a catch all rule, which Thai spouses fall into.

I think the UK Governments response to those who argue that it is their right to live as a married couple in the UK might be that they can live as a married couple in Thailand where the spouse would be comfortable with the language and where English is widely.

I'm not justifying the UK stance on this by the way.

[7by7]

All those applying to settle in the UK via the immigration rules have to satisfy the requirements of those rules. This is so regardless of their nationality or that of their spouse.

Those who are eligible to use the European regulations and do so have to satisfy the requirements of those regulations and not those of the UK immigration rules.

This is the same throughout the EEA, and in the above paragraphs one can replace 'UK' with the name of any other EEA state.

From memory, this has already been challenged in the European Court and found not to be discriminatory.

The problem with relying on the KOL requirement for ILR was that some people were simply not doing this, and were obtaining FLR every two years instead. An expensive way of doing things, and one has to wonder why they didn't spend the money on English classes instead.

There was talk of limiting the number of times someone could apply for FLR as a result, but personally I think ensuring that an applicant can communicate in English before arrival in the UK is a better way. Remember that the standard required is not very high, just the ability to hold a simple conversation, and that those who for reasons of age or disability cannot do so are exempt anyway.

As the OG says, this requirement does not mean that a couple cannot live together as a couple; merely that if they want to do so in the UK there are certain requirements that they have to satisfy. I fail to see how the English requirement is any more, or less, discriminatory or in violation of their 'Human Rights' than any of the other ones.

Only one thing is for sure about this court action; at the end of it a lot of lawyers will be a lot richer than they were before!

[VisasPlus]

7x7 is right, and Article 8 is a qualified right. That means that the "family life" doesn't have to be in the UK.

7x7 is again right when he says that the standard of English required isn't that high. But, the government's current proposals on Family Migration propose to raise the level of English required to B1 CEFR. Okay, that may not be a great deal higher than the current A1 Level, but it is raising the bar. And this is just one of the proposals. I urge you again to look at these proposals, as you will be affected.

I agree that the requirement to speak English, at any level, can be regarded as discriminatory. It is, I guess, possible to be a non-English speaker living in an English - speaking country ( maybe, a Mexican living in the USA) and be, therefore, exempt from the requirement ? Maybe that's not a good example, but I think you get the gist. I agree also with the fact that it is desirable for immigrants to speak English if they want to immigrate and integrate, but we all know that there are, and will be, thousands who don't have to qualify in this way, and who will never learn a word of English. That said, I think the question of language requirements has already been tested in the European courts by other countries who have similar requirements. The requirements are still in place, so I guess the case that is discriminatory wasn't won in the courts.

[potter09]

The link below is to a news report which covers the proceedings in the High Court(application for judicial review) in relation to the newly introduced language requirement for those who are applying for a settlement visa.

http://economictimes.indiatimes.com/news/nri/visa-and-immigration/indian-couple-\

in-uk-challenges-immigration-law/articleshow/9385243.cms

[bangkockney]

The change in the rules concern the where and when of learning English. The rule change was not about integration - it was introduced to reduce net migration. No ifs, ands or buts. Damian Green has admitted this point previously. This fact alone will cause significant problems. Race Relations Act 1976 (common law) also comes in to play and for this reason it is important to note that the case is phrased with an and/or reference to EHR. Plenty of juicy stuff.

What has not been addressed or admitted is the unfairness of test, the economic impact of denying UK English language teaching institutions and the better quality of English language teaching and testing in the UK. Further, there are few tests specifically for spouses at CEFR A1 level. How a candidate is expected to fare after the disheartening experience of sitting through a seventy minute reading and writing test has not been considered. There are also gender issues, given in some parts of the world women do not have equal access to education, whether implicitly or explicitly.

VisasPlus also provides two solid examples of the paradox in-play: you can be from a majority English speaking country yet not speak English and have the requirement waived. The Hispanic community in California is what sprang to mind for me.

With reference to EHR, the true test under Article 8 is proportionality, not exceptionality. A blanket rule which applies to all cases without reference to the individual facts is classically the kind of rule which the European Court of Human Rights has held to be disproportionate: e.g. Hirst v United Kingdom (No. 2) (2006) 42 EHRR.

Therefore, it is difficult to assert that the application of pre-entry language requirements is a proportionate means of reaching the espoused aims of the government when it is perfectly possible to encourage or even require spouses to learn English on arrival in the UK.

As 7by7 opened, it will certainly be interesting.

Edited July 28, 2011 by bangkockney

[7by7]

Posts concerning this court action made in this topic have been moved to here.

[bobrussell]

The husband at the heart of this case apparently lives over 100 miles from the closest place to have lessons and take the test. He is not willing to learn English. At 58 years old he is too old to learn even when he arrives in the UK!

His wife was 'too shy' to speak English when interviewed on radio but can speak English.

I love the diversity and mix of populations in the UK and strongly feel it enriches us all. I also accept that a husband and wife should not be separated without very great reason by immigration law. I was saddened by the interview as it was clear that this was a potential immigrant unwilling to integrate into English life except in a ghetto.

Whatever the rights and wrongs of this particular case it is going to do a lot to fuel the immigration row and strengthen the anti-immigration lobby. This is a sad case which with a little effort would have ended with a visa!

Instead it has the potential to inflame a situation already close to exploding.

Edited July 28, 2011 by bobrussell

[Thongkorn]

My wife Went to College to get her ESOL certificates, on her course there where people who had lived in England for twenty years and could not speak a word of English, how can that be right. wheres the integration.

[khastan]

It is not right but when nearly ever official piece of paper work essential to living in the UK is printed in their particular language there is no necessity for them to learn English or for that matter to integrate. To compound the issue most UK government departments even employ interpretors and in the case of the DHSS will ring you back in your language to handle your query.

.

My wife Went to College to get her ESOL certificates, on her course there where people who had lived in England for twenty years and could not speak a word of English, how can that be right. wheres the integration.

[Richard W]

I think the UK Governments response to those who argue that it is their right to live as a married couple in the UK might be that they can live as a married couple in Thailand where the spouse would be comfortable with the language and where English is widely.

It might be, but the assumption is frequently clearly false. Residing legally in Thailand is often not easy for foreign *husbands*, and permanent residence is much harder to come by. (The treatment of foreign husbands and foreign wives is equal according to Thai law, but this seems to be a case of equal but not identical.)

The problem with relying on the KOL requirement for ILR was that some people were simply not doing this, and were obtaining FLR every two years instead. An expensive way of doing things, and one has to wonder why they didn't spend the money on English classes instead.

In a lot of English-Thai marriages, husbands have a day job and wives a night job, thereby facilitating the splitting of child raising. This is not conducive to the formal study of English. My wife had to abandon her formal study when the local college switched the course days from days when she was not working to days when she was working. Fortunately, language competence was not a requirement back when my wife got her ILR.

[potter09]

The link below is to a news report which covers the proceedings in the High Court(application for judicial review) in relation to the newly introduced language requirement for those who are applying for a settlement visa.

http://economictimes.indiatimes.com/news/nri/visa-and-immigration/indian-couple-\

in-uk-challenges-immigration-law/articleshow/9385243.cms

As suggested, Race Relations Act 1976(as amended) is in the forefront of this case. Particularly, the requirement to carry out a race equality impact assessment is a crucial issue.In a previous judicial review application on behalf of HSMP applicants, it was successfully argued that the Home Office did not carry out the requisite impact assessment. I presume, among other things, a similar argument is persued in this case too. Time will tell, what happens here.