Associate Professor of Law Dr Helena Wray discusses the Supreme Court case of Bibi v SSHD, to which she provided extensive expert evidence.
On 25 and 26 February 2015, the Supreme Court heard an appeal from the Court of Appeal judgment in Bibi v SSHD  EWCA Civ 322. The case concerns the compatibility with human rights of a pre-entry language test for spouses coming to live with their UK citizen or resident spouses and partners in the UK.
While the level of the test is low (A1 speaking and listening, the lowest possible level under the Common European Framework of Reference for Languages), it can be difficult for those living in some countries, particularly in remote rural areas, to access suitable tuition and to find and travel to an approved test centre. Some tests may require some reading or writing skills to pass the speaking and listening test (if it takes the form, for example, of a multiple choice test). The benefits of learning English to such a low level before entry are doubtful but, unless the test is passed, a visa will not be issued.
The requirement to pass the test may therefore interfere with the family life of migrant families and potentially breaches Article 8 of the European Convention on Human Rights (ECHR). Under the Human Rights Act 1998, public bodies, including the immigration authorities, must act compatibly with the main rights in the ECHR, including Article 8.
Article 8 of the ECHR
- Everyone has the right to respect for his private and family life, his home and his correspondence.
- 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 wellbeing 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.
Article 8 is a qualified right; the main right is in article 8(1), while article 8(2) sets out the circumstances in which a breach of the right may be permissible. In this case, it is not disputed that refusal of a visa because of a failure to pass the language test will usually interfere with family life under article 8(1) and the main issue is whether the pre-entry test represents a justified interference and is proportionate under article 8(2) ECHR. The overall question is: has the government acted lawfully in establishing a pre-entry test and not less intrusive alternatives such as a test that is taken after entry?
This main question involves several sub-questions:
- What are the benefits of testing before, rather than after, entry in terms of the integration of spouses?
- What is the impact of the language test on the individuals affected?
- Does the test discriminate?
- What responsibility does the government have to consider these questions when creating a policy?
This case began in 2011 when lawyers in Birmingham applied for judicial review of the policy. I am an expert on the regulation of marriage migration and they approached me to provide an expert report for the claimants. I subsequently put together a team of four with Dr Katharine Charsley of University of Bristol, language expert Dr Geoffrey Jordan and a research assistant, Anne Marie Clift. We wrote an extensive main report and several supplementary reports and witness statements for the High Court hearing, which received a lot of press publicity, and the subsequent appeal to the Court of Appeal.
A case of this kind is always difficult to win as it involves a direct challenge to government policy – something the courts are reluctant to support except in the most clear cut cases – although the policy is contained in immigration rules which receive only very limited parliamentary scrutiny. The extent of the obligation on the government to justify its policies is contentious and there is evidence of differences of opinion amongst the judiciary. In this instance, the High Court judge decided that the government had met its obligations. The Court of Appeal agreed, although one of the three judges, Lord Justice Keene, dissented and found that the government had not made out a sufficient case for the benefits of a pre-entry test. The Supreme Court agreed to hear the case, accepting that it involves points of law of general public importance. During the hearing, extensive reference was made to my evidence on questions such as whether there had been a problem with spouses failing the former test, the position in other European countries and the nature of the exemptions available.
The Supreme Court’s judgment will not be available for some months. It is one of a series of cases involving aspects of family migration that have been heard by the Supreme Court in recent years and which I discussed in an article published in Public Law in 2013. Several of these cases were unsuccessful in the lower courts and eventually succeeded in the Supreme Court. However, this case is being heard in a political climate which is much more hostile to human rights and immigration. The government has committed itself to reducing immigration from all sources and has attempted to reduce the impact of Article 8 through rule changes and legislation.
The language test has been followed by far more drastic controls. In 2012, the government introduced a requirement that the UK sponsor of a spouse or partner earn at least £18,600 per year. 47% of British citizens in employment do not qualify, a percentage which rises to 61% for women and to 58% of people aged between 20 and 30 years. There are also considerable regional variations so that, for example, average earnings in 2011 in the North East were £449 per week compared to £649.40 in London. In addition to the financial requirements, the new rules effectively ended the entry of elderly or other dependent relatives from outside the EU.
The effects of these new rules have been dramatic and there has been sustained political campaigning and an enquiry by the All Party Parliamentary Group on Migration to which I gave oral evidence. The income requirements have also been challenged in the courts and I, along with my colleagues Professor Eleonore Kofman and Dr Erica Howard, again provided expert evidence. In this instance, the case succeeded in the High Court but failed in the Court of Appeal. This case will almost certainly also be heard in the Supreme Court.
These cases raise important questions about the function of the courts in protecting the human rights not only of migrants but of their family members who are UK citizens and residents and want to live with their loved ones in their own country. The government’s measures are consistent with a trend in many states in western Europe to make the entry of family members from outside the EU, and from some regions in particular, more difficult.
 H. Wray (2013) ‘Greater than the sum of their parts: UK Supreme Court Decisions on Family Migration’ Public Law 838-860.
 H.Wray, A. Agoston and J.Hutton (2014) ‘A Family Resemblance? The Regulation of Marriage Migration in Europe’ European Journal of Migration and Law 16(2) 209-247.