Marriage visas: pre-entry English requirement for spouses

A Law Centre (NI) response

January 2008

1.  About Law Centre (NI)

Law Centre (NI) is the main provider of advice and representation on immigration law in Northern Ireland. We represent asylum seekers and others with immigration issues. We also provide policy comment on immigration matters and convene the Immigration Practitioners’ Group in Northern Ireland which consists of specialist immigration lawyers and non-governmental organisations. The Law Centre’s director is a member of the Northern Ireland sub group of the Advisory Board for Naturalisation and Integration.

2.  Pre-Entry English Requirement for Spouses (Chapter 1)

2.1  Law Centre (NI) is opposed to the proposal to introduce a requirement for spouses from abroad to satisfy an English language proficiency test as a condition of entry into the UK.  We consider the requirement would be an unjustified interference with the right to private life (Article 8) and the right to marry and found a family (Article 12) and would also engage Article 14 (non-discrimination) in the context of Article 8 and Article 12 rights.  The requirement favours those nationalities whose first language is English whilst disproportionately impacting upon those applying to enter the UK from the Asian region.  It is of note that applicants from this region made up the majority of those admitted to the UK as a spouse for a probationary period in 2006 (paragraph 1.5). 

2.2  We recognise that the Government wishes to encourage English language skills as a means of encouraging integration but we consider that there are other means to achieve this objective which are less restrictive of respect for fundamental rights.  The provision of English language support to spouses to enable them to acquire language skills once they are living in the UK, for example, would meet the social policy objective of facilitating integration whilst not restricting the right of spouses to enjoy family life.  The determining factor for entry to the UK as a spouse should be support for family reunification or settlement, not linguistic ability.   

2.3  We note that there is no intention to introduce a pre-entry English language requirement to spouses of migrants entering under the points based system or for spouses of EEA nationals.  We agree that this is the correct approach and that a consistent approach to spousal migration should be applied to all those seeking to enter the UK.  We fail to understand why the spouse of a British national or of a settled person should have an additional hurdle to satisfy before entering the UK than the spouse or a person resident in the UK under the points based system or as an EEA national.  

2.4  Clarification is required in relation to the impact of these proposals upon refugees.  Paragraph 1.12 of the consultation document explicitly precludes ‘recognised refugees’ from a pre-entry language requirement but does not state that an exemption would equally apply to the dependants of a refugee.  Given the particular vulnerabilities attending to refugees, family reunification for this group must not be allowed to be hampered by a requirement to speak English in order to be admitted to the UK .  We endorse the comments of the Immigration Law Practitioners’ Association that ‘family members in a refugee camp abroad, or in many of the countries from which the majority of refugees are accepted, will have little opportunity to learn English.’ 

2.5  The requirement to acquire English language skills in the country of origin is an unreasonable condition, particularly given that, in many cases, English language instruction may not be widely available.  This is especially the case for those spouses applying for entry to the UK from countries where access to education is limited and therefore literacy levels are low.  In particular, such a requirement may disproportionately impact upon those applying to enter the UK from less economically developed countries and from rural areas within those countries where educational services are generally less available than in urban areas.   The requirement may further adversely impact upon those socio-economic groups who have limited access to education.  

3.  Demonstrating English Ability (Chapter 2)

3.1  Law Centre (NI) is opposed to an English language proficiency test prior to entry to the UK.  The consultation document does not address in detail how such a test might be managed in practice; how lack of access to English language instruction and lack of literacy skills would be factored into testing or how the costs of administering such tests would be met.  We do not therefore feel able to comment further at this stage on the proposals for demonstrating English ability. 

3.2  Given that we are opposed to the application of a pre-entry test per se for the reasons given above, we equally do not propose to comment on the scope of any possible exemptions from testing for those with mental health issues or physical impairment (paragraph 2.8). 

3.3  Should the Home Office proceed to implement a pre-entry English language requirement for spouses, a failure to pass an English language test abroad should not constitute grounds for excluding a spouse from joining their partner in the UK (paragraph 2.7).  Where a spouse fails an English language test abroad, a grant of temporary leave for the purpose of learning English in the UK should be of sufficient time and supported by adequate public resources to properly facilitate the acquisition of English skills. 

4.  Conclusion

Law Centre (NI) is deeply concerned that a pre-entry English language requirement for spouses of British nationals and others who are settled in the UK would represent a disproportionate restriction of fundamental rights which is not objectively justified by reference to the stated objective.  Language skills are most easily acquired in situ and if the public policy objective is ‘not to deter people from joining their loved ones [but] to help facilitate their integration and contribute to the cohesion of the community they will join’ then we consider that this objective is best met by supporting family reunification and the acquisition of English language skills once a spouse is resident in the UK.

© Law Centre (NI) 2008