Bibi & Anor, R (on the application of) v Secretary of State for the Home Department (Rev 1) [2013] EWCA Civ 322

Case No C4/2012/0165

[2013] EWCA Civ 322

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE QUEEN’S BENCH DIVISION

ADMINISTRATIVE COURT (BEATSON J)

Ref: CO11435/2010

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 12/04/2013

Before

Lord Justice Maurice Kay,

Vice President of the Court of Appeal, Civil Division

Lord Justice Toulson

Sir David Keene

Between

The Secretary of State for the Home DepartmentRespondent

LibertyInterested Parties

JCWIInterested Party

(Transcript of the Handed Down Judgment of

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Manjit S Gill QC and Mr Tony Muman (instructed by J M Wilson Solicitors LLP) for Appellant (1)

Mr Ramby de Mello and Mr Abid Mahmood (instructed by Fountain Solicitors) for Appellant (2)

Mr James Eadie QC and Dr Christopher Staker (instructed by Treasury Solicitor) for Respondent

Ms Karon Monaghan (instructed by Liberty) for first intervener and Mr Shahram Taghavi (instructed by Charles Russell LLP) for the second intervener.

Hearing Hearing dates : 20, 21 November 2012

Judgment

Lord Justice Maurice Kay :

[1]On 1 October 2010, the Secretary of State laid before Parliament important amendments to the Immigration Rules. Their purpose was to require a foreign spouse or partner of a British citizen or person settled in the United Kingdom to produce a test certificate of knowledge of the English language to a prescribed standard prior to entering the United Kingdom. Previously such persons were only required to demonstrate such knowledge two years after entering the United Kingdom. The amendment came into force on 29 November 2010. The amended Rule 281 contains a number of exceptions. The requisite standard is lower than that previously applied post-entry. In these proceedings, the appellants challenge the lawfulness of the amendment by reference to Articles 8, 12 and 14 of the European Convention on Human Rights and Fundamental Freedoms (ECHR) and to common law principles. On 16 December 2011, Beatson J dismissed the challenge on all grounds:

[2011] EWHC 3370 (Admin)

[2]In the opening paragraphs of his judgment, Beatson J summarised the rival contentions of the parties in this way:

“2. …The Home Secretary contends that [the amended Rule 281] is a lawful way of promoting the integration of foreign spouses and partners into the community and protecting public services. 3. Broadly speaking, it is submitted on behalf of the claimants that the new rule interferes with their rights under Articles 8 and 12 … to marry and live together in this country. This, it is argued, is because significant numbers of applicants for spouse visas will find it difficult or impossible in practice to satisfy the new rule. There are, it is stated, a number of reasons for this difficulty. They include living in places where English tuition and testing facilities are not available, having little or no education, being of limited intellectual ability, and being of an age when learning a new language will be very difficult. 4. It is contended that the resulting interference with the rights of the claimants, as British citizens or otherwise settled in this country, and in the case of Mr Chapti the spouse of such a person, requires powerful justification, and that there is no justification in this case. It is also contended that the provision is discriminatory on grounds particularly of race and nationality, but also ethnic origins, language, gender and disability, and it is thus contrary to Article 14 … read with Articles 8 and 12. It is also submitted that it is arbitrary, irrational and ultra vires at common law.”

Not all of these grounds have been pursued with equal vigour in this Court.

Rule 281

[3]It is appropriate to set out the amended Rule 281. It provides:

“The requirements to be met by a person seeking leave to enter the United Kingdom with a view to settlement as the spouse or civil partner of a person present and settled in the United Kingdom or who is on the same occasion being admitted for settlement are that: (i)(a)(i) the applicant is married to or the civil partner of a person present and settled in the United Kingdom or who is on the same occasion being admitted for settlement; and (ii) the applicant provides an English language test certificate in speaking and listening from an English test provider approved by the Secretary of State for these purposes, which clearly shows the applicant’s name and qualification obtained (which must meet or exceed level A I of the Common European Framework of Reference) unless: (a) the applicant is aged 65 or over at the time he makes his application, or (b) the applicant has a physical or mental condition that would prevent him from meeting the requirement, or (c) there are exceptional compassionate circumstances that would prevent the applicant from meeting the requirement, or (iii) the applicant is a national of one of the following countries Antigua and Bermuda, Australia, the Bahamas, Barbados, Belize, Canada, Dominica, Grenada, Guyana, Jamaica, New Zealand, St Kitts and Nevis, St Lucia, St Vincent and the Grenadines, Trinidad and Tobago, United States of America; or (iv) the applicant has obtained an academic qualification (not a professional or vocational qualification) which is deemed by UK NARIC to meet the recognised standard of a Bachelor’s or Master’s degree or PhD in the UK, from an educational establishment in one of the countries [listed in (iii) above or Ireland or the UK] and provides the specified documents; or (v) the applicant has obtained an academic qualification (not a professional or vocational qualification) which is deemed by UK NARIC to meet the recognised standard of a Bachelor’s or Master’s degree or PhD in the UK and (1) provides the specified evidence to show he has the qualifications and (2) UK NARIC has confirmed that the qualification was taught or researched in English; or (vi) has obtained an academic qualification (not a professional or vocational qualification) which is deemed by UK NARIC to meet the recognised standard of a Bachelor’s or Master’s degree or PhD in the UK, and provides the specified evidence to show: (1) he has the qualification; and (2) that the qualification was taught or researched in English OR (b)(i) the applicant is married to or the civil partner of a person who has a right of abode in the United Kingdom or indefinite leave to enter or remain in the United Kingdom and is on the same occasion seeking admission to the United Kingdom for the purposes of settlement and the parties were married or formed a civil partnership at least 4 years ago, since which time they have been living together outside the United Kingdom; and (b)(ii) the applicant has sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, unless he is under the age of 18 or aged 65 or over at the time he makes his application, and …. (ii) the parties to the marriage or civil partnership have met; and (iii) each of the parties intends to live permanently with the other as his or her spouse or civil partner and the marriage or civil partnership is subsisting; and (iv) there will be adequate accommodation for the parties and any dependants without recourse to public funds in accommodation which they own or occupy exclusively; and (v) the parties will be able to maintain themselves and any dependants adequately without recourse to public funds; and (vi) the applicant holds a valid United Kingdom entry clearance for entry in this capacity.”

Other provisions apply the pre-entry requirement to applications for entry and leave to remain as a fiancé(e), proposed civil partner, unmarried partner or same-sex partner. (a) the applicant is aged 65 or over at the time he makes his application, or (b) the applicant has a physical or mental condition that would prevent him from meeting the requirement, or (c) there are exceptional compassionate circumstances that would prevent the applicant from meeting the requirement, or (1) provides the specified evidence to show he has the qualifications and (2) UK NARIC has confirmed that the qualification was taught or researched in English; or (1) he has the qualification; and (2) that the qualification was taught or researched in English ….

[4]These convoluted provisions may be summarised as follows. Unless an applicant is a national of one of the specified countries (which are considered to be “majority English-speaking”) or can invoke one of the other exemptions, he or she must have an English language test certificate at the requisite level from an approved provider or have a degree-level qualification which was taught or researched in English. The other stated exemptions are applicants who are aged 65 or over; those with a physical or mental condition which would prevent them from meeting the requirement; and those in respect of whom there are “exceptional compassionate circumstances” which would prevent them from meeting the requirement. The “exceptional compassionate circumstances” exemption is applied to persons who are nationals of countries where there is no approved test centre. About 30 such countries are listed on the website of the UK Border Agency. It is not limited to such circumstances.

The circumstances of these appellants

[5]The cases concern married couples. In each case the wife is a British citizen and the husband is a foreign national who does not speak English. Mr Ali is a national of Yemen and lives in that country. He had no formal education and is illiterate. He would find it very difficult to learn English. It is said that there is no approved test centre in Yemen which provides tuition in English to the required level. Moreover, the test can only be taken online and Mr Ali has no computer skills. He cannot afford the fees involved.

[6]Mrs Bibi’s husband is a citizen and resident of Pakistan. They have a young child. The husband was educated up to matriculation level in Urdu. He lives in Kolti where there is no approved test centre. The nearest ones are 115 and 141 kilometres away. Daily commuting would not be practicable and he cannot afford to relocate to Rawalpindi for six months. He, too, would need to learn computer skills.

[7]I have set out these circumstances in abbreviated form. There has been no judicial determination of the facts. This led to Beatson J considering whether the applications for judicial review were procedurally in order or premature. Neither Mr Ali nor Mr Bibi had made an application for entry clearance, believing that they would be unable to satisfy the amended Rule. However, Beatson J considered the cases as matters of principle in the context of challenges to the lawfulness of the amendment and we shall do so too. In these circumstances, the assumed facts simply provide a framework in which to test the lawfulness or otherwise of the amendment.

[8]The judgment of Beatson J contains (at paragraphs 33-53) a detailed account of the historical background to the amendment of Rule 281 from the publication of the consultation paper Marriage Visas: Pre-entry English Requirement for Spouses in December 2007, through the Equality Impact Assessments and general Impact Assessments of 2009 and 2010 to the eventual bringing forward of the introduction of the amended Rule which was announced by the Secretary of State in June 2010. I do not propose to duplicate that account. Beatson J and we have received extensive written evidence, principally from Dr Helena Wray (sometimes in collaboration with other academic colleagues), senior lecturer at Middlesex University, whose expertise is in immigration law and the regulation of marriage migration, and from Mrs Helen Sayeed, a civil servant who has specialist knowledge in this field from within the Home Office.

Article 8

[9]Article 8 is at the forefront of the dispute in this case. Beatson J addressed it in a long passage (paragraphs 66-115) of his judgment. Article 8 provides:

“Right to respect for private and family life 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 the rights and freedoms of others.”

[10]Two matters are in issue:(1) Do the amendments to Rule 281 amount to an interference with the right to respect for family life within the meaning of Article 8.1? If so,

(2) Can the Secretary of State justify that interference in accordance with Article 8.2? Beatson J held that the amended Rule does interfere with the right to respect for family life but that the interference is justified. In this Court, the Secretary of State continues to dispute that there was an interference and the appellants challenge the finding of justification. (1). Article 8.1

[11]The case for the Secretary of State on Article 8.1 has two building blocks. The first in time is Abdulaziz v United Kingdom [1985] 7 EHHR 471 in which the Strasbourg Court stated (at paragraph 68):

“The duty imposed by Article 8 cannot be considered as extending to a general obligation on the part of a Contracting State to respect the choice by married couples of the country of their matrimonial residence and to accept the non-national spouses for settlement in that country.”

[12]The second is the question posed in the speech of Lord Bingham in R (Razgar) v Secretary of State for the Home Department

[2004] 2 AC 368

(at paragraph 17):

“… will such interference have consequences of such gravity as potentially to engage the operation of [Article 8]?”

That is a qualitative criterion the purpose of which is to identify a threshold, although its subsequent development has tended to interpret “gravity” with a degree of flexibility.

[13]All this now has to be seen alongside R (Quila) v Secretary of State for the Home Department

[2012] 1 AC 621

, a case decided after the commencement of the present proceedings but which breathed life into them. It was concerned with a challenge to Rule 277 of the Immigration Rules (as amended) which did not permit leave to enter or remain in the United Kingdom as the spouse of a person lawfully present and settled in the United Kingdom to be granted if either party to the marriage was under 21. The purpose was to deter forced marriages. The challenge succeeded largely because the number of forced marriages which the Rule deterred was highly debateable and it was vastly exceeded by the number of unforced marriages which it obstructed from their intended development for up to three years. The case is relevant to the present appeals in relation to both Article 8.1 and 8.2. As to Article 8.1, Lord Wilson said (at paragraph 32):

“The refusal to grant marriage visas either condemned both sets of spouses to live separately for approximately three years or condemned the British citizens in each case to suspend plans for their continued life, education and work in the UK and to live with their spouses for those years in Chile and Palestine respectively. Unconstrained by authority, one could not describe the subjection of the two sets of spouses to that choice as being other than a colossal interference with the rights of the claimants to respect for their family life, however exiguous the latter might be.”

[14]The most constraining authority was Abdulaziz but, on the issue of engagement, Lord Wilson swept it aside (paragraph 43). He concluded that the interference with the right to respect for family life was clear and that “the only sensible inquiry can be into whether the refusals were justified”. The judgment of Baroness Hale was to like effect (paragraph 72) and Lord Phillips and Lord Clarke agreed with both (paragraph 98). It is pertinent to note that one of the claimants in Quila had never enjoyed family life with her husband in the United Kingdom. They had lived together for a short time in Pakistan before he, a British citizen, returned to the United Kingdom. The Supreme Court was in no doubt that there was an Article 8.1 interference which called for justification.

[15]I am quite sure that the same is true on the assumed facts in the present cases. It is submitted on behalf of the Secretary of State that the language of “colossal interference” in the judgment of Lord Wilson leaves room for the non-engagement of Article8.1 in cases where the interference is less than colossal. It is, of course, axiomatic that insignificant interferences do not engage Article 8.1 but Lord Wilson was not laying down a requirement that the interference must be colossal. He was being descriptive of the facts in Quila, not prescriptive of a heightened test. In at least some respects, the amended rule 281 will often pose a lesser interference than the amended Rule 277 would have done. Nevertheless, in circumstances such as those assumed to exist in the present case, the interference is sufficient to call for justification. Where I do agree with the Secretary of State is in relation to the proposition that, when Article 8.1 is engaged, a lesser interference may be easier to justify than a greater interference would be. (2). Article

8.2

[16]The judgment of Beatson J, having considered the Article 8.2 issues at length, concluded that the amended Rule 281 is justified. He found that the interference is in accordance with the law (paragraph 75); that the Rule pursues a legitimate aim (paragraph 85); and that the interference is proportionate to the achievement of that legitimate aim (paragraph 115). It is necessary for me to address each of these three matters.

(a) “In accordance with the law”

[17]Beatson J said (at paragraph 75):

“Interference with family life caused by a correct application of [Rule] 281 … would clearly be in accordance with applicable immigration law and rules.”

[18]I agree. The only point made by counsel to take issue with that is in the form of a complaint that the amended Rule is not in accordance with the law because there was a failure to have regard to section 55 of the Borders, Citizenship and Immigration Act 2009 which requires consideration of the interests of children. It is not a point that was pursued with obvious enthusiasm. There are two answers to it. First, the welfare of children was considered in the second Equality Impact Assessment. Secondly, if section 55 is to have any bite in this context, it is more likely to be in relation to the facts of an individual case, and even then at the stage of assessing proportionality where it may have a role in the application of the “exceptional compassionate circumstances” exception and, perhaps, in other ways. It goes nowhere at this stage in the present case.

(b) Legitimate aim

[19]When the Secretary of State announced the commencement date for the amended Rule, she referred to the aims of encouraging integration, protecting public services and saving costs. The second Equality Impact Assessment also referred to economic well-being. Having reviewed all the material, Beatson J said (at paragraph 88):

“In the present case the categories of protection of ‘economic wellbeing’ (in view of the evidence about the impact on job prospects), ‘health’ (in view of the evidence about accessing health services) and possibly ‘public safety’ or ‘the protection of the rights and freedoms of others’ (in view of the evidence about the protection of women from domestic violence) mean that the new requirement does pursue a legitimate public aim.”

[20]There is room for debate about the third of those aims (which no doubt explains the qualification by the word “possibly”) but not about the first two. I shall refer to them in more detail when I come to consider proportionality. Significantly, when Beatson J came to deal with proportionality, he referred to other matters which could equally well go to the issue of legitimate aim. For example, “having English is a factor in educational achievement” (paragraph 98) and “the savings to public finances from reducing the need for government, public and health authorities to provide translation services identified in the impact assessments” (paragraph 99). One way or another, however, I am entirely satisfied that the amendments to Rule 281 were made in pursuit of legitimate aims. Indeed, the encouragement and acceleration of integration is positively benign.

(c) Proportionality

[21]This is the real Article 8 battleground. In Quila, Lord Wilson, drawing on the well-known formulations in Opinion of the Privy Council de Freitas v Permanent Secretary of Ministry of Agriculture and Fisheries, Lands and Housing

[1999] 1 AC 69

, 80, and the speech of Lord Bingham in Huang v Secretary of State for the Home Department

[2007] 2 AC 167

, at paragraph 19, stated (at paragraph 45) that the questions which normally arise in this context are:

“(a) is the legislative object sufficiently important to justify limiting a fundamental right?; (b) are the measures which have been designed to meet it rationally connected to it? (c) are they no more than necessary to accomplish it? And (d) do they strike a fair balance between the rights of the individual and the interests of the community?”

He considered that, in Quila, the main focus was on questions (c) and (d). The same is true in the present case.

[22]It is important to keep in mind the nature of the task required to be carried out by the court. In R (SB) v Governors of Denbigh High School

[2007] 1 AC 100

, Lord Bingham said (at paragraph 30):

“… it is clear that the court’s approach to an issue of proportionality under the Convention must go beyond that traditionally adopted to judicial review in a domestic setting … There is no shift to a merits review, but the intensity of review is greater than was previously appropriate, and greater even than the heightened scrutiny test … The domestic court must now make a value judgment, an evaluation, by reference to the circumstances prevailing at the relevant time … Proportionality must be judged objectively, by the court.”

[23]The question then arises as to how the court should approach the view taken by the Secretary of State. We no longer speak of “deference” but, again in the words of Lord Bingham (Huang, at paragraph 16), we accord “appropriate weight to the judgment of a person with responsibility for a given subject matter and access to special sources of knowledge and advice.”

[24]All this is familiar. Indeed, it was rehearsed by Beatson J in paragraphs 74-76 of his judgment. I have repeated it here because one of Mr Gill’s submissions is that Beatson J departed from the proportionality approach which he had carefully set out and lapsed into the less intense Wednesbury approach. I consider this submission to be unsustainable. It is true that in the course of his painstaking consideration of proportionality Beatson J very occasionally uses Wednesbury-like language. Thus, in paragraph 94 he says that the Secretary of State “was justified in considering there was a problem” and in paragraph 96 he says that the Secretary of State “was entitled to conclude that such advantages did not outweigh the advantages of individuals having some, albeit a limited, knowledge of the language before arrival”. However, on any fair reading of the proportionality part of the judgment as a whole it is clear that he not only set out the correct approach; he also adhered to it. He considered a huge amount of detail and came to his own conclusions about it, having said (at paragraph 90):

“Once the detail is considered, it is necessary to stand back and assess whether, in the light of all the material, the interference with family life is such as to be disproportionate to the legitimate aims of the measure. The court must do this bearing in mind that, despite the more intense nature of its scrutiny …, it does not conduct a review of the merits of the decision that has been challenged.”

And when he came to describe his conclusion (at paragraph 115) he said:

“I have concluded that, in the light of all the material before me, … the rule providing for a pre-entry English language requirement is not a disproportionate interference with family life …”

I have no doubt that Beatson J, a judge with great experience and expertise in the field of judicial review and the ECHR, adhered to the task required by the authorities.

[25]Mr Gill also submits that Beatson J erred in law by failing to consider whether the requirement of a pre-entry test is a more intrusive interference than is necessary to achieve the legitimate aim. I do not consider that there was any such failure. The central issue is: pre-entry or post-entry? At several points Beatson J identified disadvantages of the delayed post-entry test approach: see, for example, paragraphs 95 and 97. He plainly considered that, in order to avoid significant disadvantages, it was necessary to resort to the admittedly more intrusive pre-entry requirement. To the extent that it is now suggested that there was an unconsidered middle way, namely an early post-entry requirement, that, it seems to me, would lose the manifest benefit of a pre-entry requirement which Beatson J described as “stepping stone which a migrant would build on immediately on arrival in the United Kingdom” (paragraph 97). This is reflected in the Impact Assessment of July 2009 which referred to assisting “a spouse’s integration into British society at an early stage”. (Emphasis added). It also reduces the risk of non-compliance.

[26]I have already described the judgment of Beatson J as careful and painstaking. I do not propose to address it, paragraph by paragraph. Indeed, that is not Mr Gill’s approach. Some of his criticisms are painted with a broad brush, headlined by references to “paternalism” and “social engineering”. I propose to concentrate on his more focused points.

[27]I accept that, as both parties submit, the circumstances of the present case differ from those in Quila where the aim was to reduce a severe social problem, namely forced marriages. The social problem in the present case, whilst “pressing”, is less pronounced. To that extent, it may be said to be more difficult to justify the interference with the protected right as “necessary”. On the other hand, if the interference is less invasive, it may be more readily classified as proportionate. It seems to me that we are in the territory of an important right (private life relating to marriage and similar relationships) but where the interference is not, to use Lord Wilson’s word, colossal. It involves a relatively simple test, satisfaction of which will generally be achievable within a relatively short time. At this point, it is appropriate to remind oneself that one is concerned with the proportionality of the Rule, absent any judicial findings of facts in individual cases.

[28]I do not doubt that the Rule creates anomalies. For example, a foreign spouse who is from one of the exempt countries but who does not speak English is able to enter without satisfying the pre-entry test, whilst a fluent English-speaking spouse from a non-exempt country who does not have the necessary educational qualifications has the inconvenience of satisfying the pre-entry requirement. It is simply not possible to predict with precision how many people fall into either of those categories. This brings me to the heart of Mr Gill’s conceptual case. His principal complaint, it seems to me, is that the justification proffered by the Secretary of State is long on estimates, assumptions, predictions and speculative assertions but short on empirical proof that the amended Rule will not operate in a disproportionate manner.

[29]In my judgment, there are two answers to this submission. First, it is difficult for a court to adjudicate upon such a submission in the abstract. In a sense, the appellants have set a hypothetical ball rolling and are seeking to take advantage of its hypothetical nature. Secondly, and more importantly, the submission misunderstands the scope for judicial intervention in a case such as this. I consider this to be the most important point in this case. It calls for further elucidation.

[30]The pre-entry test was conceived as a benign measure of social policy with the purpose of facilitating the integration of non-English-speaking spouses. Where a State seeks to change its immigration rules in order to produce a benign result, it would be regrettable if, in order to justify the measure, whether pursuant to Article 8.2 or Article 14, it faced a burden which could only be discharged by irrefutable empirical evidence. The Secretary of State’s perception is essentially one of predictive judgment. Many a well-intentioned social change is supported by a rational belief in its potential to achieve its benign purpose but without being susceptible to empirical proof prior to its introduction. It is for this reason that it is appropriate for the State authority to be accorded a margin of appreciation in the formulation of its social policy. Without such an indulgence, many benign reforms would be stifled in limine. Of course the implications of the change of policy may be so dubious that it is demonstrably not justifiable. However, in some situations a margin of appreciation has to be pitched at a level which allows for change, even if there is some risk to some individuals, that they will be adversely affected by it. The principle was articulated in Stec v United Kingdom (2006) 43 EHHR 47, a case concerning Article 14, together with Article 1 of the First Protocol, but relevant to the present case, not least because the appellants emphasise the discriminatory aspect of the pre-entry test requirement (to which I shall return). The Strasbourg Court said (at paragraph 52):

“… a wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy. … Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds and the Court will generally respect the legislature’s policy choice unless it is ‘manifestly without reasonable foundation’.”

This test informed the recent decision of the Supreme Court in Humphreys v Revenue and Customs Commissioners (

[2012] 1 WLR 1545

[2012] UKSC 18

). Without it, it might become impossible for a government to govern without waiting for judges to judge.

[31]I can see no reason or contrary authority to preclude such an approach in a case such as this. The Secretary of State identified a social problem which may be described as an impediment to integration. A great deal of consideration was given to the implications of a change to pre-entry testing. There were two Impact Assessments and two Equality Impact Assessments. They are substantial documents. It is possible to take issue with points here and there but they have not been significantly undermined. Moreover, at the hearing before Beatson J, the appellants were not able to refute the submission on behalf of the Secretary of State that, in the first seven months of operating the amended Rule, there had not been a significant fall-off in spouse visas. Beatson J said (at paragraph 103):

“[The figures] show that ‘spouse entry clearance applications remain largely high’ and that in the period between June and August 2011 there were only 40 less cases compared to the volume of applications in the same two month period in 2009. Mrs Sayeed also stated that the number of settlement visas issued in that period was higher than the number issued in the same period in 2009 and 2010. Those statements are accurate.”

For what it is worth, we have also been shown the figures to June 2012. They do not demonstrate any significant difference.

[32]I am led to the conclusion that the Secretary of State identified a social problem (see Beatson J at paragraph 94); she considered an ameliorating solution; she assessed the implications of introducing it; she provided for exempt and exceptional cases; and, in the event, the effect on applications and grants was not numerically significant. Moreover, it may well be that a significant number of those who are unable to satisfy the pre-entry test certificate requirement will benefit from the exceptions, particularly the one based on “exceptional compassionate circumstances”. Applying the wide margin of appreciation which I consider to be appropriate, I consider that Beatson J was right to conclude that the move to a pre-entry requirement, pitched at a rudimentary level, was proportionate. There is a world of difference between this requirement and the prohibition in Quila which acted as an insuperable barrier to entry to those in the proscribed age group, even when the intended marriage was demonstrably unforced. It is, of course, possible that in an individual case, with favourable facts found, a particular applicant may be able successfully to invoke Article 8 or some other protection (for example, section 55 of the Borders, Citizenship and Immigration Act 2009). The Secretary of State accepts this. But the head-on challenge to the amended Rule itself fails.

[33]I have read in draft the judgment of Sir David Keene. He takes a different view about proportionality. He considers that prior to its amendment Rule 281 was not shown to give rise to significant problems and refers to statistics suggesting “a diminishing problem”. It is not easy to interpret all the statistical material. The “diminishing” figures referred to were interpreted by the Secretary of State as being “most likely due to greater awareness of the need to meet the requirements”, which had only been introduced in 2007: Equality Impact Assessment, October 2010, paragraph 2.1. That Assessment concluded that “Spouses granted leave to enter the UK are a key group unable to demonstrate the required knowledge of English language and life in the UK (KOL) when they come to the end of the two year probationary period at which they can apply for settlement”. In the Impact Assessment of July 2009 it was stated that foreign spouses seeking settlement “are the largest group who do not pass the English test after two years”. One also has to have regard to the fact that the pass rate in relation to the post-entry test included many who were not in this country on spouse visas but had entered, for example, for work purposes. Many would have been competent in English before arrival but would still have been required to pass the test. Their doing so inevitably inflated the pass rate. In her witness statement, Mrs Helen Sayeed stated that the data indicates that, after two years in the United Kingdom, almost a third of spouses/partners were not taking the post-entry test, “which suggests they may have acquired insufficient English to enable them to do so”. That seems to me to be a natural inference. I do not consider that the Secretary of State or we are precluded from accepting (as has also been accepted in Germany, the Netherlands and Denmark) that there is evidence of a significant problem, which is susceptible to alleviation by a switch to pre-entry testing at an appropriately rudimentary level. For these reasons, I respectfully disagree with Sir David Keene.

German and Dutch jurisprudence

[34]At the hearing of these appeals, reference was made to a specific German case in the Federal Administrative Court dated 30 March 2010. It appeared to support the position of the Secretary of State in that it held a pre-entry German language test requirement to be compatible with Article 8. However, there the resident spouse was not a German national. Immediately after the hearing we were made aware of a more recent case in the Federal Administrative Court dated 4 September 2012, where the resident spouse did have German (and Afghan) nationality. It is therefore more analogous to the present appeals. The Court found in favour of the foreign spouse to the extent that the spouse of a German national should not be kept waiting for more than a year by the application of the pre-entry test. However, the reasoning seems to be based on provisions in the German Basic Law rather than on the ECHR. I do not now think that the German jurisprudence greatly assists us. All that one can say is that another state party to the ECHR has a pre-entry language test requirement and that, thus far, it has not been held to be unlawful on ECHR grounds. In post-hearing written submissions, we have also been referred to recent decisions from The Netherlands, where there is a pre-entry “civil integration” test. They do not speak with one voice. In some cases, the issue was dealt with by reference to EU law rather than the ECHR. The one case in which there was found to be a breach of Article 8 (AWB 10/1883, The Hague District Court, 24 November 2010) turned on the exceptional facts of the case rather than on a finding that the pre-entry test in itself breached Article 8. In these circumstances, I have come to the conclusion that the German and Dutch jurisprudence does not assist our task very much, although it does demonstrate that at least some of our European neighbours have introduced pre-entry language test requirements with the aim of improving integration and that no Court has found the relevant provisions to be inherently inimical to Article 8.

Article 12

[35]Article 12, which is headed Right to marry, provides:

“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.”

[36]Beatson J concluded (at paragraph 65):

“I accept Mr Eadie’s submission … that the new rule does not interfere with the Article 12 rights of the claimants or other persons. This is because it does not prevent marriage within the United Kingdom, where both parties are present in the jurisdiction, or prevent anyone within the United Kingdom from travelling abroad to get married. Article 12 does not confer a right to marry in the United Kingdom where one party to the proposed marriage is abroad and has no right to enter the United Kingdom: see A v United Kingdom (1983) 5 EHRR 296 … It is also clear from the jurisprudence of the Strasbourg Court that Article 8 and not Article 12 is the appropriate provision in the consideration of whether a couple have a right to cohabit in a particular country … In Quila, the Supreme Court, while declining to follow Abdulaziz in making a distinction between the positive and negative obligations of a State under Article 8 … did not suggest that this aspect of the decision should not be followed.”

[37]Although the grounds of appeal to this Court seek to rely on Article 12, it did not feature in the oral submissions save to the extent that Mr Gill sought to strengthen his case on Article 8 by reference to the fact that the aspect of private life in issue (marriage) is itself a protected right. That is, of course, true. However, for the reasons given by Beatson J, Article 12 does not avail the appellants as a free-standing right in this case. As it happens, all the appellants are married in any event.

Article 14

[38]Article 14, which is headed Prohibition of discrimination, provides:

“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.”

Although the words do not appear in the text, a difference in treatment is only unlawfully discriminatory “if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised”: Stec, at paragraph 51. It is not facetious to record that, in one sense, all immigration laws and rules are discriminatory, at least on grounds of nationality. Article 14 does not provide a free-standing right to protection against discrimination. Its scope is defined by its being linked to “the enjoyment of the rights and freedoms set forth in this Convention”. We are concerned with Article 14 in connection with the right to respect for private life pursuant to Article 8.

[39]Discrimination law is often complex. Our domestic law testifies to that. However, Article 14 does not have the same conceptual framework as our domestic law. It is important to keep in mind that we are concerned here only with Article 14. In Carson v United Kingdom

(2010) 51 EHRR 13

, the Strasbourg Court described its general approach to the somewhat laconically expressed Article 14 in these terms (at paragraph 61), “The Court has established in its case law that only differences in treatment based on an identifiable characteristic, or ‘status’, are capable of amounting to discrimination within the meaning of Article 14. Moreover, in order for an issue to arise under Article 14 there must be a difference in treatment of persons in analogous, or relevantly similar, situations. Such a difference in treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised.” The Court then went on to embrace the Stec approach to the margin of appreciation, including the “manifestly without foundation” test.

[40]In some extreme cases, the Strasbourg Court has gone so far as to hold that certain forms of discrimination are inherently incapable of justification. For example, in Timishev v Russia

[2005] 44 EHRR 37

, discrimination against a Russian national in Russia on grounds of his Chechnyan ethnicity attracted the observation (at paragraph 58):

“In any event, the court considers that no difference in treatment which is based exclusively or to a decisive extent on a person’s ethnic origin is capable of being objectively justified in a contemporary democratic society built on the principles of pluralism and respect for different cultures.”

[41]Mr de Mello places strong reliance on this approach but, in my judgment, we are in very different territory. As I have said, all immigration law is inherently discriminatory in one sense but it cannot be said that the separate queues at airport arrival halls for EU and non-EU travellers are unlawful. It is also a significant feature that the underlying concern in the present case is not one of immutable characteristic such as ethnicity or gender. It is with the ability to speak rudimentary English as a qualification for long-term residence. Although persons are treated differently by reason of their nationalities (the exempt as against the non-exempt), nationality is being used as a proxy for familiarity with the English language.

[42]This, it seems to me, is the real issue in relation to Article 14. It embraces another question, namely whether it is justifiable to have a “bright line” rule which will inevitably produce anomalies such as the French-speaking Canadian who does not speak English. Beatson J addressed these issues in the following passages:

“130. … The evidence about the exceptions based on nationality and academic qualifications from various countries shows that they were designed to reflect the fact that there was no purpose in applying a language requirement to categories of persons who (albeit possibly with rare exceptions) can be expected to meet the requirements without difficulty. 131. … it is rational to exempt those who speak English to the required standard from the test. But unless it is possible to find a surrogate to identify them, a policy-maker would be in a ‘Catch-22’ situation of, in effect, requiring those seeking exemption to pass a test to show they are entitled to the exemption … it would be absurd to suggest that a person should have to undergo a test to prove that he or she meets the language requirement in order that he or she should be entitled to benefit from an exemption from the requirement to undergo a language test. 132. … in this context, it is administratively sensible and permissible to draw relatively ‘broad’ or ‘bright’ lines in terms of selecting those who can be considered as already sufficiently meeting the requirement to justify being exempted from the provision. What is necessary is that the particular ‘bright line’ adopted be a rational one: see … AL (Serbia) v Secretary of State for the Home Department [2008] UKHL 42, at [44-46] … in AL (Serbia) Baroness Hale stated (at [45]) that not all bright line criteria which are rational on pragmatic grounds are justified. She, however, stated that ‘bright lines’ even if they produce what appear to be arbitrary distinctions between one case and another, are often necessary and can be justified. 133. … In my judgment, drawing a bright line which puts the nationals of English-speaking countries and those with educational qualifications that were taught in English or obtained from institutions in English-speaking countries in one category, and others in a different category, is, in the light of the aim of the test, rational. …. 138 … I have concluded that the exemptions based on nationality, like 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 not exempt.”

[43]I have set out these passages at length because, for the most part, I agree with them. They dispose of the issue of direct discrimination by reference to the “not in a relevantly similar situation” test, as per Carson, rather than by reference to justification although, in reality, there is often an overlap between the two, as there is here. I should add that we received some thoughtful submissions from Ms Karon Monaghan QC on behalf of Liberty (as intervener). Some of them are uncontroversial (for example, the absence of the strict need for a comparator in Article 14: see AL (Serbia)) but I do not consider that any error that may be attributed to Beatson J in this respect – and I have not found it necessary to address that part of his judgment – undermines the later reasoning to which I have referred. Necessarily, the primary concern of an intervener is with general principles, rather than with their application to the facts of the particular case.

[44]I turn briefly to the question of disparate impact and indirect discrimination on grounds of nationality or ethnic origin. Beatson J said (at paragraph 141):

“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 claimants’ position is that any language requirement would be contrary to Article 14. That is manifestly not so … The [other] disparate impacts relied on, based on poverty, lack of educational opportunities and rurality and remoteness are also not impacts on the ground of nationality.”

This, too, I consider to be substantially correct.

[45]In any event, however, Beatson J concluded (at paragraph 142) that any difference in treatment between the exempt and the non-exempt nationalities has an objective, reasonable and proportionate justification for the reasons he had previously rehearsed. Again, I find myself in the same position.

[46]I should record that Beatson J also dealt with submissions in relation to discrimination on grounds of gender and disability. They have not featured conspicuously on this appeal. To the extent that they have not been abandoned, I adopt the reasoning of the judgment below.

The common law challenge

[47]In addition to the challenge to the amended Rule 281 on ECHR grounds, the appellants also challenged it on traditional Wednesbury grounds. Beatson J considered the challenge to be “unarguable” (paragraph 146). It appeared almost subliminally in this Court. However, for reasons which overlap with those relating to the rejection of the ECHR challenge, it is a fortiori unsustainable.

Conclusion

[48]It follows from what I have said that I would dismiss these appeals. I do not consider that the amended Rule 281 contravenes any requirement of the ECHR or of domestic law. This does not mean that in a future case, on judicially determined facts, an individual claimant may not be able successfully to challenge the application of the amended Rule in his or her case.

Lord Justice Toulson:

[49]I have had the benefit of reading the judgments of Maurice Kay LJ and Sir David Keene. I agree with the analysis and conclusions of Maurice Kay LJ.

[50]On the critical points of difference between them, the matters summarised in paragraph [34] made it reasonable in my view for the Home Secretary to have considered that there was a real problem of a significant number spouses lacking a basic level of English 2 years after entry to the UK. There may be other ways of interpreting the statistics, as there often is, but that is not an unreasonable evaluation.

[51]It was legitimate for the government to aim to improve that situation. Then comes the question of “proportionality”. That is particularly difficult to measure when attempting to assess the likely benefits of new processes. Impact assessments can be valuable up to a point, but there is an inevitable degree of crystal ball gazing, and the scheme adopted by the Home Secretary by its nature involved an experiment. In some areas, such as medicine, it may be possible to gather a large amount of empirical evidence from laboratory tests or clinical trials, but that is not the type of situation with which we are concerned.

[52]I do not consider that it would be right for the court to apply article 8 so as to stultify the experiment undertaken by the government through the adoption (subject to exceptions) of a requirement of pre-entry tests. In this respect I particularly agree with Maurice Kay LJ’s approach in paragraph [31], except that I would prefer to substitute “unobtainable” for “irrefutable” in the second sentence. The point is that government would be unduly trammelled if judges required an unrealistic level of proof of the benefits intended to be obtained by new processes. A broader approach is justified, under the rubric of a broad margin of appreciation. In this context I find it difficult to differentiate between rationality and proportionality as a measure of scrutiny of the lawfulness of the pre-entry test requirements. I conclude that they are within a category of measures which the government might not unreasonably adopt for addressing the perceived problems and therefore proportionate.

Sir David Keene:

[53]There is much in the judgment of Maurice Kay LJ with which I agree. On the Article 8 issue, I too am of the view that amended Rule 281 does amount to a clear interference with the right to respect for family life within the meaning of Article 8 (1) of the ECHR, since it is likely in a number of cases to force married couples or civil partners to live separately for substantial periods of time, perhaps indefinitely in some cases, unless the British spouse or partner is prepared to up roots and to live instead in the foreign country where the other resides. To face such a choice may not be quite as “colossal” an interference as occurred in the Quila case, but I am in no doubt that it does amount to a significant interference with the right to family life, which only avoids a breach of Article 8 if it can be justified under paragraph 2 thereof.

[54]The terms of Article 8 (2) have been set out at paragraph 10 of Maurice Kay LJ’s judgment. Again, I accept that the interference is in accordance with the law and I am prepared to agree that the amendment to Rule 281 pursues to a modest degree a legitimate aim, namely that of the economic well-being of the country. Taken in isolation, it is no doubt desirable that those entering this country should have some basic level of understanding of the English language or should achieve that soon after arrival, if only to enhance their job prospects.

[55]What I do not accept is that the amendment is no more than is necessary to accomplish the legitimate aim and that it strikes a fair balance between the rights of the individual and the interests of the community. In other words, it does not satisfy Lord Bingham’s tests as set out by him in Huang (ante) at paragraph 19 and identified as questions (c) and (d) by Lord Wilson in Quila, paragraph 45. It fails on what is conventionally described as proportionality. That, as Lord Bingham noted in the Denbigh High School case at paragraph 30 (ante, paragraph 23), requires the court to make a value judgment, but is a judgment to be made objectively in the light of the evidence.

[56]With all due respect to Maurice Kay LJ, no-one has suggested in argument before us that interference with Article 8 rights can only be justified by the production of “irrefutable empirical evidence” (paragraph 31 herein). I agree that that would set the bar at too high a level, and I also accept that there is an element of prediction of the future when deciding upon a measure such as the amendment now under consideration. But merely because there is that element of prediction does not make it either unnecessary or impossible to produce some empirical evidence to justify the interference. In particular, there can and should be evidence produced to demonstrate the extent of the existing perceived problem in a case such as this, a problem which the measure is designed to overcome.

[57]Prior to this amendment, the legitimate aim to which I have referred above was being pursued by means of the post-entry language test. This required knowledge of the English language to be demonstrated two years after entry. Failure meant a refusal of the right to settle in the United Kingdom and instead merely a grant of further leave to remain. Even though this post-entry test, the KOL test, was more demanding than the one required by amended Rule 281, the evidence put before this court shows that the post-entry test appeared to be working. The Home Office’s own Equality Impact Assessment of October 2010 showed that in 2007, the number of spouses/partners failing the post-entry test was 3,245. In 2008 this figure fell to 995, and in 2009 it fell again to 470. The evidence thus suggests a diminishing problem. Moreover, all these figures represent a tiny proportion of those spouses/partners settling in this country. The evidence before us from Dr. Wray indicates that in 2009 something over 50,000 such spousal migrants achieved settlement.

[58]It is difficult, therefore, to see that the Secretary of State has demonstrated that the pre-amendment situation gave rise to significant problems. One needs to consider also what contribution the pre-entry requirement makes to a solution of the non-English speaking migrant problem, such as it is. Counsel for the Secretary of State described the pre-entry requirement as a “stepping-stone” towards greater integration, saying that the sooner one acquired knowledge of the English language, the better. Put in such a generalised way, it is difficult to disagree. But the evidence is that the pre-entry test is at such a level that it is of very little value as a means of communicating with English people in the United Kingdom: see Dr. Wray, expert report 19 May 2011, paragraphs 45 – 46. The English language is much more quickly and fully mastered once a person is within the community where that language is in everyday use. I see no reason not to accept her evidence on this point.

[59]I conclude, therefore, that the pre-entry test contained in the amendment has not been demonstrated by any substantial empirical evidence to be no more than is necessary to achieve the legitimate aim. The post-entry test appears to have been increasingly successful in dealing with the limited problem, and that test presented far less of an interference with family life than that in the amended Rule. It is in addition difficult to see, on the evidence, what additional benefits to the public interest the new test brings, and in that situation it does not seem to me to justify the interference with Article 8 rights. As such it does not strike a fair balance between the public interest and the rights of the individual.

[60]Nor is it saved by the reference in Rule 281(i) (a)

(ii) (c) to “exceptional compassionate circumstances” preventing an applicant from meeting the requirement. It is well-established that the Secretary of State has in any event a discretion to depart from the strict terms of the Immigration Rules where she considers it appropriate to make a relaxation in an individual case, so the reference in sub-paragraph (a) (ii) (c) merely makes explicit what is always implicit. If anything, it represents a more restrictive approach, since it requires that the applicant show that he or she is prevented from meeting the requirement by the exceptional circumstances. According to the Home Office evidence of Mrs Sayeed, this would cover applicants who have no test centre anywhere in the country of which they are a national (first witness statement, paragraph 12). It would not, however, apply to countries such as India and Pakistan, where there are test centres but where the distance involved may make it extremely difficult for an applicant to obtain access to the necessary tuition and testing.

[61]In the light of the conclusion I have reached on the Article 8 issue, it is unnecessary for me to deal with the arguments raised under Article 14. Suffice it to say that I find the appellants’ case on discrimination less persuasive. Nonetheless, because I conclude that the interference with Article 8 rights consequential upon the amendment to Rule 281 cannot be justified on the evidence as necessary and proportionate, I would allow this appeal.