The Supreme Court has this week dismissed an appeal challenging the introduction of English language requirements for partners seeking to join their family members in the UK in the case of Ali & Bibi.

The facts of the Appellants are particularly stark: one lives in Yemen where there are no approved English language test facilities available and the other would need to complete a four hour round trip to access language classes to enable him to reach the required level to sit and pass the test.

The Appellants sought to challenge the rule on the grounds that it was unlawful, represented an unjustifiable interference with their rights to a private and family life as protected by Article 8 of the European Convention of Human Rights (ECHR), or that it was unjustifiably discriminatory under Article 14 ECHR in securing their Article 8 rights.

However, as acknowledged by the Court, the Appellants set themselves a very tough task. The remedy that they were seeking was a declaration that the rule itself was unlawful rather than arguing that it was a breach of their human rights on account of their particular circumstances.

The Court held that the rule was not disproportionate, reminding us that there is no general obligation for the State to respect a couple’s choice to live in the UK. The Justices were of the view that the rule served a legitimate aim, including facilitating integration.

Despite dismissing the appeal, the Supreme Court Justices have taken a pragmatic approach. The Justices have invited further submissions from the parties on the lawfulness of the Secretary of State’s entry clearance guidance. In passing judgment Lady Hale raised concerns about the legality of the guidance as it did not sufficiently protect those who would find it impracticable to meet the requirements.

Whilst the Appellants have not succeeded in having the rule struck down, they may still succeed in having the Secretary of State’s guidance declared unlawful. If so, it will hopefully pave the way for the Appellants and others affected by this rule to make a successful entry clearance application and be reunited with their loved ones.

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