The Immigrant Spouse and the New English Language Requirement.

Reasons for additional requirement

The Home Secretary Theresa May said in her statement,

The new English requirement for spouses will help promote integration, remove cultural barriers and protect public services.

She was correct in her assertion that it is difficult to find yourself in a new and strange city, and it is even worse if you cant speak the language. It leads to isolation and depression. The situation is made worse when the newly arrived dependant spouse fails to learn the language due to fear and embarrassment. Asking dependant spouses to learn the language gives them the opportunity to explore and learn the laws that govern them, because with the ability to read the law comes the ability to know when they are breaking the law or when they are being denied their rights. By asking the immigrants to learn the language before entry into the United Kingdom, the State is playing its role to ensure integration and independence of the applicant (easier and more confident to get a job).

Exceptions to the rule

If the dependant spouse is a national of a country within the European Economic Area and Switzerland they will not be asked to meet the requirement or if they are national of a majority English-speaking country (the list consists of Antigua and Barbuda, 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, the United States of America).

The level of the test

The Applicant needs to only master basic english language skills.. A classic example would be the ability to hold a conversation in English. The applicant needs to demonstrate basic English at A1 level, the same level required for skilled workers admitted under Tier 2 of the points-based system (formerly the work permit visa). Under the Tier 2 english language requirement the applicant is either exempted as explained above, passes the english language test or holds a degree taught in english.

1. the english language test

The applicant will not be given a test on entry at port or on submission of his application. The applicant merely needs to produce evidence that they have passed the basic level english language test which will be in the form of a certificate obtained from a recognised test provider. In short if the application is made outside the UK, the applicant has to take the test outside the UK and submit the certificate at the time of making the application. The HO is yet to provide a list of test providers for the spousal english language test both in the UK and abroad. However seeing that the same level of english language skills are required as under Tier2 english language skills the centres currently being used under the Tier2 requirements will probably be used for the spousal english language requirement. The HO assumes that to pass the test the applicant will require 40-50 hrs of tuition.

2. hold a degree taught in English

Under tier 2 the applicant is said to have met the A1 level English language skills requirement if they can produce proof that they hold a degree that was taught in English and is equivalent to a United Kingdom bachelor’s degree. The applicant has to provide an original certificate of the degree awarded as well as the date of award and name of the awarding instuitution. If the applicant has not graduated at the time of making the application, he will be asked to provide a letter from the awarding institution as proof of the award to be given. Like any other application, the Home Office will only accept originals and not copies of the documents. Copies will only be accepted if for some reason the originals have been lost and replacements cannot be obtained.

Pursuant to the above, it can be assumed that anyone in Zimbabwe schooled past primary school can meet these language requirements. This poses a question why most former British colonies are not included in the list of exempt countries when English is their official language and they have been taught to read and write in English from elementary school. For example Zimbabweans, most if not all have been taught from the age of six or even earlier how to speak the language. They probably speak English better than most of the majority of English speaking countries but because they do not hold a degree taught in English they will have to take and pass an English language test before their application to join their partner in the UK can be considered. This position is unacceptable but understandable as allowing the applicants to prove independantly that they were taught and can speak the language would lead to a more onerous task than that already before the HO. Not all schools have impeccable shools record to vouch for the applicants attendance let alone performance. Secondly allowing persons to use high schools attendance and performance to meet the english language test will lead to a far from uniform result the very thing the HO is trying to achieve hence the requirement that the degree be taught in English should be equivalent to a degree awarded in the UK.

The Home Secretary Theresa May stated that the aim of the requirement was to promote intergration of immigrants which is true but it has the added effect of limiting immigrants into the country. I am tempted to say that was the real effect of the requirement given the recent aims to limit or curtail immigration numbers to the UK. The English requirement is a must and not a may meaning that if all the other requirements are met except that requirement, the applicant will not be admitted.

In terms of the excemption allowed under this requirement, EU Nationals are not required to take the test. Most of the members of the EU members are not majority English speaking countries hence most of their nationals are in the same predicament as nationals of non-majority speaking countries. So if the aim of the english requirement was to promote intergration as stated by the Secretary why is it only applicable to certain non English majority speaking communities. The fact is both EU and Chinese nationals on coming to England face the same language barriers. It is clear then that the rule was not put in place to promote integration but to limit immigration for non- EUcountries. But then again asking EU nationals to conform to this requirement would be a waste of time as they have free movement within the EU area and do not need permission to enter and stay in the UK. Cameron was reported recently to have said the following to BBC RADIO 4S Today programme,

“I want to see, and the government wants to see, the level of net immigration into the UK come down to the tens of thousands, rather than the hundreds of thousands it’s been in recent years.”

The rule is clearly a step in that direction, that is to limit the number of non-EU immigrants.

I question the validity of the claim that the rule was put in place to only promote intergration but the fact still is that until challenged the requirement is to be fulfilled. It will prove to be onerous and costly to some but it will have to be fulfilled and chances are that if you have met the other requirements already it will be somewhat easy to meet the new requirement, but it may now take longer to make the application. In short if you do not hold a degree taught in english and are not a national of an EU country you will have to take the English language test. Considering that the requirement will only take effect from 29 Novemeber 2010 applicants will have plenty of time to get all their paperwork in order in this regard and will not suffer any prejudice.

What to do

If you do not hold a degree taught in English that is equivalent to a UK Bachelor degree and wish to switch to a spousal visa or want to join your spouse or partner in the UK the best thing to do is to submit your application before 29th November 2010. That way you will escape having to write the English test and incurring the fees associated with taking the test. Failure to do so will leave you without an option but to take the test. – Gloria Nyamayi is a registered legal practioner in Zimbabwe as well as a qualified solicitor in the UK with Whitestone solicitors. She can be contacted at gnyamayi@whitestonesolicitors.co.uk