In a new Statement of changes to the Immigration Rules (CM7944) - the seventh this year and the fifth since the Coalition government was elected in May - the United Kingdom Border Agency (UKBA) has introduced the English language requirement for spouses. This change takes effect for new applications made on or after 29 November 2010. Everyone applying for entry clearance or for leave to remain as a spouse or partner of a person with settled status in the United Kingdom (a British national or someone who has indefinite leave to remain in the UK) or of a person with limited leave to remain in the UK, will have to demonstrate that he or she has a basic level of command of English.
While it clearly is controversial to impose the requirement to speak English upon the partners of people settled in the UK this change was at least expected. What were not expected were the other changes also brought in by CM7944.
Strikingly these include the complete reworking of the Immigration Rules relating to the admission of spouses, partners and children of people who have been granted asylum in the UK. From 22 October 2010 those rules, which do not require applicants to show that they can be maintained and accommodated in the UK without recourse to public funds, will only apply to the family members of people who have been granted refugee status and who still have that form of leave to remain in the UK.
This has been done following the UK Supreme Court's judgment in ZN (Afghanistan) v Entry Clearance Officer (Karachi) [2010] UKSC 21 in May of this year, in which the Court found that the Rules applied to applications from people whose parents or spouses had been granted asylum, and afterwards become British citizens. In doing so the Supreme Court overturned the Court of Appeal's judgment in the same case - which said that the Rules only applied to people whose parents, spouses or partners were still refugees at the time of their applications to join them.
The changes to the Rules have the effect of preventing applications from the children and spouses or partners of people who were granted asylum in the past and are now British citizens being considered under the Immigration Rules relating to the family members of refugees - effectively restoring the Court of Appeal's judgement.
Rule 339BA also has been amended so that a grant of British citizenship to a refugee (by these changes the word "refugee" is also now defined in the Immigration Rules - by reference to the Refugee or Person in Need of International Protection (Qualification) Regulation 2006) automatically removes that person's refugee status.
These changes were undertaken without consultation. This is despite the fact that when giving its judgment the Supreme Court noted that:
"It can be said with force that all applications by a spouse or child to join or remain with a British citizen should be subject to the same rules. On the other hand there are coherent policy reasons for applying the same principles to applications to join or remain with a spouse or parent who has been granted asylum both before and after such a sponsor has become a British citizen. An important factor in this regard is… that one of the purposes of the Refugee Convention is to protect and preserve the family unit of a refugee. The need for protection for a member of such a family unit is likely to be the same whether the sponsor obtains British citizenship or not. Moreover, the risk of persecution may be such that the need for protection for family members is particularly stark.”
The absence of any consultation is explained as follows in the Statement of changes:
"The amendments in respect of asylum have not been subject to consultation as this would be disproportionate given the minor nature of the changes and the fact that they reinforce rather than change existing policy."
It is understood that the approach taken by the UKBA has met with concern, which is why there is a motion listed for 25 October in the House of Lords to disapprove this Statement of changes in the Immigration Rules.