- Two British women took the government to court over language checks
- Husbands do not speak English so have been blocked from joining them
- Supreme Court rules checks are not 'unreasonable or disproportionate'
A legal challenge to immigration rules that force foreign national to learn English before coming to the UK to join their spouses has been thrown out by judges.
The Supreme Court rejected claims that the pre-entry checks were 'unreasonable, disproportionate and discriminatory'.
Judges denied claims the rules infringed human rights but did suggest it could be unlawful, raising the threat of further court challenge.
A panel, headed by the court's president Lord Neuberger, unanimously dismissed their case and decided that the rule does not infringe article 8 of the Human Rights Act
Two British women took the government to court because their husbands, who cannot speak English, are foreign nationals and wish to join them in the UK.
Saiqa Bibi and Saffana Ali both claimed the requirement for their husbands to speak English breached their right to a private and family life under article 8 of the European Convention on Human Rights (ECHR).
It is said in both cases that it would not be feasible for their husbands to pass a test before coming to the UK.
Today, the panel of judges, headed by the court's president Lord Neuberger, unanimously dismissed their and decided that the rule does not infringe article 8.
Since late 2010 the spouse or civil partner of a British citizen or person settled in Britain has been required to pass an English language test before coming to this country.
Before the amendment to the immigration rules, they were only required to demonstrate such knowledge two years after entering the UK.
In December 2011 a High Court judge in Birmingham dismissed judicial review cases brought by three couples.
Mr Justice Beatson then ruled that the requirement did not interfere with their right to marriage, and was legitimate in its aim of protecting public services and promoting integration.
Two of the cases were then taken on to the Court of Appeal, but appeal judges ruled against the two wives in April 2013.
The Supreme Court rejected claims that the pre-entry checks were 'unreasonable, disproportionate and discriminatory'
The Supreme Court judgment follows earlier rulings in the High Court and Court of Appeal that there was no disproportionate interference with family life.
Although the Supreme Court rejected the challenge against the rule itself, the judges have asked for further submissions from the parties on 'whether a declaration should be made that the operation of the guidance in its present form is incompatible with article 8 rights where compliance with the requirement is impracticable'.
Lady Hale, deputy president, suggested that the appropriate solution to avoid infringements in individual cases would be to 'recast' the guidance to grant exemptions in cases where compliance with the requirement is impracticable.
One remedy might be for the court to declare that the present application of the guidance is incompatible with the rights of individuals in such circumstances.
Lord Neuberger agreed that the guidance 'seems bound to result in the infringement of article 8 rights in individual cases', but said the rule itself was not disproportionate.
At a hearing earlier this year, Manjit Singh Gill QC, representing Mrs Bibi, told the justices that the right to 'married life by living together' was being restricted for the first time in British history by 'executive action'.
In written submissions to the justices, James Eadie QC, for the Home Secretary, asked the court to dismiss the appeals.
He said the case concerned the provisions of the immigration rules requiring applicants for 'spouse visas' to demonstrate that they have achieved a certain level of competence in the English language, subject to certain exceptions.
Rosie Brighouse, legal officer for human rights campaigners Liberty, said: 'This is a careful, nuanced judgment from the UK Supreme Court.
'While we are disappointed the court does not agree with us on the rule's discriminatory effect, we welcome its recognition that the Home Secretary's harsh and unreasonable guidance puts many couples in an impossible situation, and may well be unlawful.
'The court has not yet had its final say - and we know many families will wait anxiously for its ultimate decision.'