An unusual case

Associate Professor of Law Dr Helena Wray discusses the implications of the Supreme Court judgment in the case of Ali and Bibi v SSHD, to which she provided extensive expert evidence.

Last month the Supreme Court gave judgment in Ali and Bibi v SSHD [2015] UKSC 68, a judicial review of the rule which requires applicants for admission as a spouse or partner to take and pass a basic English test (level A1 speaking and listening) before coming to the UK.

When the case started in 2011, I was asked to provide expert evidence for the applicants. Given the breadth of expertise required, I decided to put together a team of four experts. Together we submitted one main and several additional reports in the proceedings. I have already discussed on Middlesex Minds the background to the case and the legal arguments.

Concern

Both the High Court and the Court of Appeal had found that a requirement to learn English before coming to the UK promotes integration and is compatible with human rights. The Supreme Court agreed. This is unsurprising; the courts are very reluctant to strike down the immigration rules, which are subject to some parliamentary approval and which concern a matter long regarded as one in which the government should have wide discretion. Many individuals would not find it difficult to take and pass a basic language test and the evidence did not show that the rule would have no benefits, only that these are likely to be modest. In those circumstances, it was always likely that the rule itself would be upheld.

However, all five judges expressed concern that the rules and guidance, taken together, do not provide sufficiently for those cases in which it would be difficult or even impossible to pass the test or to do so would very expensive. The expert evidence that we provided was crucial here for two reasons. Firstly, it showed that the benefits of the test are not significant and that the best way to learn English is after entry. In her lead judgment, Lady Hale accepted most of the points we had made about why the rule is of little benefit in enabling the integration of incoming spouses. Because the benefits are not substantial, while having a rule is lawful, it may not be applied with such rigidity that it will exclude those who, through no fault of their own, either cannot pass the test or can do so only with great difficulty or at great expense; using the vocabulary of human rights, it would be disproportionate to apply the rule in such cases.

Here, our evidence was again critical in showing the often serious obstacles to taking and passing a language test, in particular, in accessing suitable tuition in rural areas and developing countries. As exemptions were drafted very narrowly not only in the rule itself but also in the guidance which provides for cases that fall outside the immigration rules, Lady Hale (with whom Lord Wilson agreed) considered that the operation of the rule and guidance together is likely to be incompatible with the human rights in a significant number of cases. However, as this had not been specifically argued in the legal proceedings, she invited further submissions on this point with a view to ruling later on the guidance.

Unconvinced

Two of the judges (Lord Hodge and Lord Hughes), while they agreed that the government would need to amend its guidance to avoid future successful human rights claims, were unconvinced that it was possible to make a ruling that was sufficiently clear and precise to be a useful guide. However, they were willing to hear further submissions on the point, although their concern was primarily with the cost and difficulty of obtaining tuition and passing the test, while Lady Hale was also concerned with the disadvantages facing those with little literacy or education. Finally, Lord Neuberger was also attracted by the suggestion that the Court should take the opportunity to rule on the guidance which he also saw as too narrow, and he agreed with Lady Hale that there was a need to consider the position of those who lack literacy or education as well as those affected by practical obstacles. However, he was aware that making a ruling that was sufficiently precise to be useful at this stage would be difficult and was open to the argument that this should not be attempted.

It is very unusual for the Supreme Court to invite further submissions and to consider expanding their ruling.

It is very unusual for the Supreme Court to invite further submissions and to consider expanding their ruling in this way. A Supreme Court judgment is expected to be final, definitive and to rule only on the issues that were argued before them. Lord Neuberger explained the reasons for the Court’s approach when he said:

“This is an important and sensitive topic, and it could be unfortunate if there was no formal record of this Court’s concern about the application of the Guidance. That is particularly true given the public expenditure which has been devoted to these proceedings, coupled with the fact that a declaration may avoid the expenditure of further costs on subsequent proceedings involving a challenge to the Guidance. And a formal declaration now would avoid any further delay involved in establishing the correct approach to be adopted to applicants” (para 103).

Lack of clarity

In other words, it is better that this issue is decided now than for it to be litigated again at huge expense over several years, when the basic position is clear and it is the detail that needs to be established. If the Supreme Court feels able to make a ruling, that will enable new and compliant guidance to be issued and all future cases to be decided on a consistent and more humane basis. If it cannot, then the boundaries will have to be decided by lower courts over time, decisions are likely to be inconsistent at least for a period and the government is unlikely to amend the guidance substantially until a clearer picture emerges. The former is clearly the more desirable scenario but this depends on the lawyers persuading the Court that a suitable ruling is both just and practicable. However this plays out over the next few months, it is clear that the government will have to amend the guidance sooner or later if it is to avoid adverse human rights judgments in respect of those for whom passing the English test is disproportionately difficult. While this judgment’s headline is the unanimous finding that a pre-entry language test is lawful, its ultimate impact and significance are far from clear and the government is no longer able to impose a pre-entry language test with almost no regard for circumstances.