English UK takes Government to court
9 July 2010

The Government's decision to raise the required level of English for visa students applying to study the language in the UK was challenged in the High Court this week.

English UK's judicial review centres on the way in which the minimum language requirement for the General Student Visa was raised earlier this year from "elementary" (A1 on the Common European Framework of Reference) to "intermediate" (B1).

The major strand of the legal argument focused on whether it was legitimate for the Home Secretary to have introduced the B1 language requirement through the UK Border Agency’s Guidance to Sponsors, rather than explicitly introducing it in Parliament.

"The change to the minimum level of English tuition ought as a matter of law to have been introduced by a change to the immigration rules and was incapable of being introduced by changes to the sponsor guidance," argued Judith Farbey, counsel for English UK.

Miss Farbey said that under the 1971 Immigration Act, any changes to the rules must be brought before Parliament. MPs then have 40 days in which they can “disapprove” the changes. She said: “The 1971 Act makes plain that the Secretary of State must be constrained by the law. We say he must be accountable.”

But Neil Sheldon, appearing for the Home Office, disagreed with this interpretation. He argued that MPs clearly understood from the relevant paragraph that there would be minimum academic requirements and that this change could have been disapproved by MPs if they had wanted to. “By laying that rule before Parliament the Secretary of State was in my submission making it perfectly clear how he intended to operate this facet of border control. He made it perfectly clear that discretion was reserved for himself in setting a minimum academic requirement and the right to exercise that discretion,” he said.

The English UK hearing, which lasted for a day and a half before Mr Justice Foskett, also considered many of the other issues surrounding the Tier 4 review and the way in which the B1 language level was introduced. 

Miss Farbey took the court through events from the introduction of Tier 4, the  rise in applications from the Fujian area of China, the announcement of the Tier 4 review, the way in which the Secretary of State announced the new rules on the Andrew Marr show and the subsequent dissatisfaction of a House of Lords committee which examined the process. Many members of English UK were present for the hearing.

English UK is seeking a declaration that the decision was unlawful and for an order to quash it. Mr Justice Foskett is now considering the evidence. He told the court that he appreciated the urgency.


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