The language paradox
http://jcwi.wordpress.com/, 26 July 2011
Eight months since the introduction of pre-entry language tests for spouses and partners, and a vital case has started in Birmingham. JCWI is intervening in the case, and it is perhaps timely to take a look at the impact of this restriction on immigration. We've covered this issue before, in detail in the case of ‘Muhammed' and in a more policy oriented way in other articles.
Listening to people who have experienced the test and who have suffered from family members being denied the right to join them in the UK, our understanding of the impact of the test is becoming clearer.
Unfair testing
There is a problem with the tests themselves, as few of the lists of providers have designed a test for the sole use of spousal applicants wishing to fulfill the criteria of the UKBA. There's also a stark problem presented to people who have difficult access to English teaching and facilities to learn. As with many other aspects of immigration policy, the rules are heavily stacked in favour of those with money gaining the right to migrate to the UK, and poorer people, many from conflict zones, have many more (and more difficult) hurdles to overcome.
The test don't come cheap, compounding the inequity of the whole scheme, which fits with the accusation from Alan Travis in The Guardian, on the publication of the recent proposals on Family Migration from the home office, that immigration is not for the poor.
Test providers are detailed by UKBA on their website. They include Cambridge ESOL, the City & Guilds International ESOL Diploma and the International English Language Testing System (IELTS), but few if any of these institutions actually offer a test in Speaking and Listening, meaning the unfortunate applicant will have to go through a full test, taking in writing and reading. This would obviously have an impact on a candidate's confidence and performance in the other parts of the test. It is testament to the lack of forethought and care in introducing the language requirement.
Any results of such tests are broken down into the four components of speaking, listening, reading and writing and a pass level is set for the latter two, discarding the paper based parts. How a candidate is expected to fare after the disheartening experience of sitting through a seventy minute reading and writing test has not been considered.
Disadvantaging the disadvantaged
In Emily Churchill's previous article for this blog the ordeal faced by those in places such as South Sudan is approaching impossible and no sanction is available to mitigate such circumstances. That returns us to the fundamental argument of the best place for a migrant to learn English. As Damian Green has previously admitted, the language requirement is designed to impact (negatively) on net immigration figures. What has not been addressed or admitted is the unfairness of test, the economic impact of denying UK English language teaching institutions and the better quality of English language teaching and testing in the UK.
Legal arguments
There is already a requirement for migrant spouses/partners to learn English. The change to the Rules therefore concerns where and when. Applicants with no or very little knowledge of English could previously come into the country for a maximum of 27 months, after which they would have to demonstrate "sufficient knowledge of the English language and sufficient knowledge about life in the UK”. Those wishing to apply for indefinite leave to remain upon entry had to pass a language test. We will therefore be arguing before the High Court that the new rules are unlawful at common law and/or incompatible with Articles 8 (right to private and family life) and 12 (right to marry), coupled with Article 14 ECHR (obligation not to discriminate in relation to enjoyment of Convention rights).
We'll keep you posted about further developments as and when they take place.
Much of the research for this article was carried out by Ittrat Ishfaq – many thanks.