Dr. Helena Wray

Senior Lecturer in Law, Middlesex University

EXPERT REPORT

RE: R (on the application of Chapti and others) v SSHD

I, Dr. Helena Wray, Senior Lecturer in Law at the Department of Law, Middlesex

University, say as follows:

1. I have been asked to prepare the following report in the above case by Robina

Shah, Immigration Advisory Service.

2. As an expert, I am aware of my supervening obligations to any Court that is seized

of this matter. I fully understand that my duty in providing written Expert Reports and

giving evidence is to help the Court, and that this duty overrides any obligation to the

party who has engaged me. I confirm that I have complied with my duty. I confirm

that I have made clear which facts and matters referred to in this report are within my

own knowledge and which are not. Those that are within my own knowledge I

confirm to be true. The opinions I have expressed represent my true and complete

professional opinions on the matters to which they refer.

3. I provide the present report as an academic expert on legal and other issues

concerning the regulation of marriage migration to the UK. I was admitted as a

solicitor in 1988 and have maintained my name on the roll of solicitors but do not

currently hold a practising certificate. I have a Ph.D in law awarded by School of

Oriental and African Studies (SOAS), University of London. I have held my present

position at Middlesex University since 1998, where I am engaged to teach and

research on issues relating to immigration law, postgraduate research skills and

English Legal System. I am also a visiting lecturer in immigration law at SOAS. I am

the author of articles on immigration law in academic journals and am about to

publish, through Ashgate, a monograph on the regulation of marriage migration to the

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UK since 1962. Since January 2011, I have been joint managing editor of Journal of

Immigration, Asylum and Nationality Law.

4. Some parts of this report have been written by others at my request. Dr Geoffrey

Jordan wrote Part 2 of the report, Anne-Marie Clift wrote Part 3 and Dr Katharine

Charsley wrote Part 6. I do not have personal knowledge of the matters referred to in

those sections but I have explained the duties of an expert to each of the contributory

authors. Our c.v.s are attached to this report as Annex 1. Some parts of the report refer

to academic work carried out or published by Dr Charsley and myself.

5. This report comments on the requirement (found in paras 281(i)(a)(ii), 290(vii) and

295(i)(a)(ii) of the immigration rules HC 395) that spouses, civil partners, fiancé(e)s

and unmarried partners from outside the EU/EEA, who wish to join a partner who is a

long term resident or citizen of the UK, must produce a certificate from a test centre

approved by the government to show they have passed the Level A1 Speaking and

Listening test of English. Level A1 refers to the ‘Common European Framework of

Reference for Languages’ (CEFR), developed by the Council of Europe’s Education

and Languages Division. In this report, the requirement is called the ‘pre-entry test’

as, although it also applies to those applying for leave to remain in-country, the focus

here is on the position of out-of-country applicants. Where the reference is to

‘spouses’ or ‘partners’, all affected groups are included unless otherwise stated.

6. The report addresses the following:

1. Government arguments in favour of the pre-entry test as evidenced in the

consultation documents, the Equality Impact Assessments and elsewhere;

2. The pre-entry test from a Second Language Acquisition perspective (written

by Dr Geoffrey Jordan);

3. Obstacles to passing the pre-entry test in the country of origin with a focus on

India, Thailand, Pakistan and Yemen (written by Anne-Marie Clift);

4. The exemptions and exceptions to the requirement to take the pre-entry test;

5. The effect on UK’s ethnic minority communities;

6. Whether the pre-entry test enhances integration (written by Dr Katharine

Charsley);

7. Use of pre-entry tests migrants elsewhere in Europe;

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Part 1: Government arguments in favour of the pre-entry test

7. While some backbench MPs had advocated pre-entry tests for spouses for several

years,1 the first intimation of official government interest was in Securing the UK

Border: Our Vision and Strategy for the Future, published in 2007. As the title

suggests, it set out the government’s strategy for ‘a strong border’. According to the

Ministerial Foreword, the aim was ‘to make legitimate travel easier, yet prevent those

who might cause us harm from travelling here’. It announced plans for more stringent

controls throughout the immigration process (chapter 1). The suggestion of a pre-

entry test for spouses is contained in chapter 3 entitled ‘Wider, Tougher Checks

Abroad’ and comes under the heading ‘Targeting Areas of Abuse’. It is followed by a

section headed ‘Sanctions Against People Who Provide False Documents and

Information’. Considering how best to integrate successful migrants into UK society

was not addressed in that document.

8. The then Home Secretary, Jacqui Smith, presented a consultation on the pre-entry

test, Marriage Visas: Pre-entry English Requirement for Spouses, to Parliament at the

end of 2007, including it with a consultation on forced marriage and a statement of

intent on the points-based system as the ‘key aspects of our migration reform

programme’.2 The focus on control so central to Securing the UK Border was also

present in the Consultation. The Ministerial Foreword placed the proposal in the

context of ‘our overall strategy for reform’ although there was also a reference to

assisting integration. In Chapter 1, there were brief allusions to the affective

relationships involved (for example, ‘loved ones’ in para. 1.1) and the importance of

language skills to integration (para. 1.2). However, the proposal for a pre-entry test

was specifically linked to the pre-entry requirements for Tier 1 and Tier 2 points

based system (PBS) migrants which aimed to ensure that ‘economic migrants have the

necessary language skills to make a meaningful contribution to the UK economy’

(para. 1.9). The following paragraph (1.10) described family formation as the ‘other

significant immigration route to the UK’ and notes that ‘spouses … have full access to

the labour market on arrival, but may not have the necessary language skills to take

1 Home Office. Foreign and Commonwealth Office (2007) Securing the UK Border: Our Vision and Strategy for the Future. Ann Cryer MP suggested pre-entry testing for spouses as early as 2001 (see HC Deb, 17 July 2001, c7WH).2 HC Deb, 5 December 2007, c72WS. Home Office/Border and Immigration Agency (2007) Marriage Visas: Pre-entry English Requirement for Spouses.

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full advantage of that access’. However, the spouses of PBS migrants were expressly

excluded from the proposal although they also have access to the labour market (para.

1.10) as were EEA nationals and their family members and refugees (para. 1.12).

9. In para. 1.11, the objectives of introducing the language test were said to be:

To assist the spouse’s integration into British society at an early stage;

To improve employment chances for those who have access to the

labour market;

To raise awareness of the importance of language and to prepare the

spouse for the ‘language and life in the UK’ test which was now taken

at the settlement stage (‘the settlement test’).

Thus, integration, subsequently highlighted by the government as the major objective,

was only one of three stated objectives at this stage. The relationship between

integration and language is discussed later in this report. Spouses coming to the UK

may or may not wish to enter the labour market but, so long as maintenance and

accommodation criteria are met, there is no obligation upon them to do so. ‘Raising

awareness’ of the settlement test is an imprecise objective. In any event, the declining

numbers of those who fail the test suggest that awareness is already increasing (see

this section, para. 19 below).

10. Responses to the consultation were reported in Marriage Visas: The Way

Forward.3 Out of 101 responses, 68 disagreed with a pre-entry English test and 31

agreed. 47 out of 68 respondents agreed that, if a test were imposed, failure should not

delay entry. An earlier analysis, published but then withdrawn apparently because of

unrelated inaccuracies, showed that organisations were more vehemently opposed

both to the proposal itself (45 against the proposal, 11 in favour, 1 undecided) and to

the exclusion of partners who fail (23 opposed, 6 in favour, 1 undecided).4 The

government says, in its Equality Impact Assessment of 1 October 2010 (discussed

below), that the consultation findings were based on the responses of a self-selected

group and cannot be considered representative of the general population. This may be

so for individual responses but consultations provide an opportunity for specialist

organisations to provide an informed opinion. While particular views are not 3 Home Office/UK Border Agency (2008) Marriage Visas: The Way Forward – July 2008.4 Home Office/UK Border Agency (2008) Analysis of Marriage Visa Consultation Responses – June 2008 40-57.

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attributed, those responding to the consultation included groups with many years of

experience and expertise in this area.

11. In fact, their concerns were partially acknowledged in Marriage Visas: The Way

Forward which proposed introducing pre-entry testing only after its feasibility had

been established by a cross-government group. Early implementation did not seem to

be envisaged given the plan for ‘annual reporting’. Instead, spouses would have to

show a commitment to learning English post-entry (p.8). There is no published record

of the determinations of the cross-government group. However, it apparently

recommended setting a date for implementation, which the government announced for

the summer of 2011.5 An Equality Impact Assessment published in July 2009

explained that the working party believed that setting a date would generate a supply

of sufficient English tuition and they were allowing two years for this to happen

(p.12).

12. The Equality Impact Assessment also stated, at p. 1, that spouses ‘are the largest

group who did not pass the English test after two years’. This is a puzzling claim.

Spouses are the only group of migrants who can settle after two years. Most migrants

have to wait at least five years. It would not be surprising if their English was better at

that stage. The policy objectives cited above are repeated and a new one added: to

improve equality of opportunity and treatment of migrant spouses, reflecting an

argument made by some supporters of the proposal during the consultation process.

The particular vulnerability of some spouses who cannot speak English is an issue

that merits consideration and is discussed below.

13. More information is available in the Impact Assessment of Pre-application

English Language Requirements Summary: Intervention & Options dated 27th July

2009. The level to be demanded, A1, is said to require about 40-50 hours tuition (a

claim that is discussed later in this report) although it is not clear whether this is for

all language skills or just the listening/speaking skills that are (notionally at any rate;

see the discussion in Part 3 below) required for the test. The assessment of costs and

benefits acknowledges ‘[p]ossible harm to family reunions’ but does not attempt to

5 Home Office/UK Border Agency (2009), Earning the Right to Stay: A New Points Test for Citizenship at 23.

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quantify its extent nor its distribution (p. 6). An underlying issue seems to be public

perception; a drawback of inaction is said to be damage to the reputation of UKBA

and the government (p. 5) and an argument in favour is increased public

understanding of migration system due to transparency (p. 6). Monetised benefits

include increase in output due to spouses being engaged in more productive

employment, reduction in translation costs due to fewer non-English speakers in the

UK and the payment of language test fees when paid in-country (p. 6). However, it is

later acknowledged that such savings and the integration benefits are difficult to

quantify but the Assessment nonetheless concludes that the costs (which include the

harm to family reunions) are ‘in proportion’ to the aims (p.8).

14. In June 2010, it was announced that the test would be introduced in November

2010, before the expiry of the proposed two year lead-in time. A further Equality

Impact Assessment published in October 2010 did not explain how concerns about

availability had been addressed. Nor were these addressed elsewhere. It seems that the

accelerated introduction was part of the new Coalition government’s commitment to

reducing the number of overall numbers of migrants including family migrants. In

September 2010, the Immigration Minister Damian Green said, in the context of a

speech outlining the government’s strategy on immigration. He said: ‘We need not

just to cut the numbers, but to make sure we gain maximum benefits from those in the

new smaller pool of immigrants’. He went on to outline plans to achieve this in each

category and, in relation to family, said:

Nearly two thirds of those who arrived in 2004 are still in Britain after five

years, with the vast majority already having been granted settlement.  We have

started to take action in this area by requiring, from November, a minimum

level of English from those applying for marriage visas.6

15. The Home Secretary, Theresa May, has also placed the pre-entry test in the

context of a government policy that aims to reduce net migration:

We aim to reduce net migration from the hundreds of thousands back down to

the tens of thousands … Last year, the family route accounted for nearly 20%

of non-EU immigration. Clearly, British nationals must be able to marry the 6 Speech by Immigration Minister Damian Green 7 September 2010 available at: http://www.homeoffice.gov.uk/media-centre/speeches/Damian-Green-real-immigration (accessed 7th May 2011).

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person of their choice, but those who come to the UK must be able to

participate in society. From next week, we will require all those applying for

marriage visas to demonstrate a minimum standard of English. We are also

cracking down on sham marriages, and will consult on extending the

probationary period of settlement for spouses beyond the current two years.7

16. A further Impact Assessment and an Equality Impact Assessment were issued in

October 2010. The Impact Assessment largely repeated the arguments made before

although it was now stated that ‘spouses are the largest group admitted to the UK

under the Immigration Rules without an English language requirement’ (p.5). It was

also acknowledged that the pre-entry test might deter entrants as a fall in fee income

was anticipated (p. 5) although it was later argued that the outcome would be deferral

of applications of between one and two years rather than an overall reduction (p. 8). A

correlation was assumed between spousal migrants and demands on public spending.

On page 10, the ‘baseline position’ is said to be ‘spouses who cannot speak English

on entry place a burden on public services and a drain on the UK’s economy’. Success

of the policy would be measured by the extent to which their impact on the economic

well-being was reduced. No evidence was cited to support such assumptions and they

are questionable. Spousal migrants are admitted only if adequate maintenance and

accommodation is available and on condition of ‘no recourse to public funds’. Such

requirements are removed only on settlement which anyway requires the passing of a

language test. There is no evidence provided of the extent to which newly arrived

spousal migrants require special services such as interpretation or translation. It is

unlikely that these are substantial given that they will have a UK settled sponsor to

assist them. In any event, as discussed later, English competence at level A1 is

unlikely to have a material impact on any such need.

17. The Impact Assessment also claimed that English language skills increase levels

of employment and wages, an argument pursued further below in the discussion on

the Equality Impact Assessment. The specific benefits for spousal migrants of such

higher level language skills were recognised as inconclusive in the Impact

Assessment (see p. 9 where it was acknowledged that there may not be more highly

paid jobs available to such migrants). 7 HC Deb, 23 November 2010, c169.

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18. The October 2010 Equality Impact Assessment stated that ‘spouses granted leave

to enter the UK are a key group unable to demonstrate’ sufficient English to pass the

settlement test (p.3), relying on undisclosed and provisional management information

which I am not in a position to examine. However, it did not say whether this group

are ‘key’ because they represent a significant proportion of all migrants who take the

test or because they are significantly more likely to fail and, if so, by what margin.

Without the information on which the claim is based, evaluation of it is not possible.

Damian Green’s comment, cited in para. 14 above, suggests that it is not, in fact, the

number who fail but the number who pass that is the concern.

19. The Equality Impact Assessment shows the number of spouses failing the

settlement test as declining sharply to a very low figure. In 2007, 3,245 spouses,

unmarried and civil partners were granted further leave to remain as a result of failing

the test. In 2008, the number was 995 and in 2009, 470 (see section 2). This is a tiny

fraction of the number of spouses who settle. A government-sponsored paper, The

Migrant Journey, shows that in 2009, 60,480 migrants achieved settlement after

entering via the family route (defined as ‘husband, wife, civil partner, fiancé/e,

proposed civil partner, or unmarried partner or same-sex partner’ and children

accompanying the main applicant so not, apparently, children coming to join those

already settled).8 Most of these would have been spouses and partners as only 7,150

children of spousal migrants were admitted in 2007 and able to apply for settlement in

2009.

20. Even allowing for children, the number settling as spouses according to The

Migrant Journey is actually larger than the number of spouses who entered two years

earlier with probationary leave. 42,200 people entered the UK in 2007 as a spouse or

fiancé(e). Substantial numbers (27,150) of spouses also gained probationary leave in-

country.9 Given the prohibition on in-country switching into marriage for those

without leave however, most of these should come within the total in The Migrant

Journey which categorises migrants by their first leave as worker, student or family

member. However, The Migrant Journey does include in the family route to 8 Achato, L., Eaton, M. and Jones, C. (2010), The Migrant Journey (London: Home Office) at 3, 9.9 Home Office (2008) Control of Immigration: Statistics United Kingdom 2007 Home Office Statistical Bulletin 10/08 at 43, 59. The statistics exclude spouses who were entitled to immediate settlement under the immigration rules.

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settlement, the small number of migrants (2,280) who entered as family and switched

into another route and so would have to wait longer to settle (p. 10). Some allowance

may also be made for those migrants who failed the settlement test when it was first

introduced in 2007 and passed it later. Whatever the cause of the apparent

discrepancy, the information available does not suggest that the settlement test

represents a major hurdle for marriage migrants, quite the reverse. This contention is

supported by the work of Katharine Charsley, a contributory author of this report,

who found that the number of spouses settling dropped only briefly when the

settlement test was first introduced in 2007 (with more women than men failing)

before resuming its upward trajectory.10

21. Nor has it been established that spouses find it more difficult than work migrants

to pass the settlement test. Migrants who enter for work must wait 5 years for

settlement and so only those entering in 2004 could settle in 2009. The Migrant

Journey shows that only 29% of those who came for work in 2004 had achieved

settlement by 2009 as compared to 55% of spouse migrants who entered in the same

year (although a larger proportion of work migrants - 60% as against 37% of marriage

migrants - were no longer in the immigration system and therefore had either left the

UK or remained without leave).11

22. Some nationalities find the settlement test more difficult to pass. According to the

2010 Equality Impact Assessment, the top nationalities for spousal entries in 2009

were Pakistan, India, Bangladesh, USA and Thailand. The available statistics show

that the average pass rate for the settlement test in 2009 was 70.9%.12 US and Indian

nationals performed better than average with pass rates of 97.7% and 79.2%

respectively. Pakistan (63.8%), Thailand (51.8%) and Bangladesh (44%) had pass

rates below average. However, these figures are not broken down to show how

marriage migrants perform compared to other types of migrant. The statistics seem to

show attempts made rather than the percentage who eventually pass the test. The

statistics already cited suggest that only small numbers of marriage migrants have still

10 Charsley, K. (2011), Marriage Related Migration to the UK: A Brief Overview of Trends, Paper delivered to Marriage and Migration Workshop, Bristol University 20 January 2011.11 Achato et al n. 8 above at 6.12 http://news.bbc.co.uk/1/hi/8707152.stm accessed 31st March 2011. These statistics were published by the government and widely reported at the time. However, at the time of writing this report, they could not be accessed from the Home Office Research Development and Statistics website.

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not passed the settlement test by the time their probationary leave expires and thus

need further leave to remain. It may be that some migrants have to take the test more

than once but that hurdle is relatively minor compared to the need to pass a pre-entry

test which, as the next section shows, will present serious difficulties for some

migrants. In general, there seems to be no evidence in the public domain that marriage

migrants, as a group, find the settlement test particularly difficult.

23. The 2010 Equality Impact Assessment links language competence to various

advantages: employability and earnings potential, community participation and the

ability of women, in particular, to interact with institutions and assist their children’s

own English language development. It cites several academic sources in support of

these contentions. Examination of them shows that few consider language

competence to be the dominant factor and none makes the case for a pre-entry test.

24. The main claim made is the economic one: that English language skills increase

earnings. As discussed below, this does seem to be broadly true. As one would expect,

speaking English increases the chances of well-paid employment in the UK.

However, the weight given to earnings potential seems misplaced in this context.

Spouses are not economic migrants and are not obliged to work provided the couple

are maintained and accommodated adequately under the immigration rules. Labour

market participation may aid integration but, as the discussion below on integration

shows, it is only one facet of a complex concept.

25. Two related sources are cited in support of the relationship between language

competence and earnings.13 In fact, one, Labour Market Performance of Immigrants

in the UK Labour Market draws on the other. It is concerned only with migrants’

economic participation and earnings. It finds that language skills are associated with

significantly higher earnings. However, there are also suggestions of further

complexities. For example, wages remain lower for British-born members of some

communities, notably Pakistani, Black African and Caribbean communities, where

language competence is less likely to be in question and which include nationalities

13 Dustmann, C. and Fabbri, F. (2003), ‘Language Proficiency and Labour Market Performance of Immigrants in the UK’ Economic Journal, 113, 695-717; Dustmann, C., Fabbri, F. Preston, I. and Wadsworth, J. (2003), Labour Market Performance of Immigrants in the UK Labour Market, Home Office Online Report 05/03.

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exempted from the pre-entry test. Wage differentials for immigrants are lower in the

public sector particularly for non-white migrants. The authors are cautious in their

conclusions:

We do not have a simple answer for why there are large differences

between immigrants of different origin, conditional on observable

characteristics. One reason may be language proficiency - the results

we report indicate that language proficiency is lowest among those

groups that exhibit the largest disadvantages in the labour market, and

that language is an important determinant for economic success. More

and better data, which allows to link language ability to economic

outcomes, would be helpful to quantify more precisely the degree to

which disadvantages of some groups relate to language.14

They go on to say that other factors may play a role including cultural differences and

discrimination but, as their work did not set out to investigate these, they are unable to

comment on their significance. The authors do not consider whether acquiring English

prior to entry would confer any advantage.

26. The Equality Impact Assessment also claims that the pre-entry test will have

advantages for the children whose mothers will be able to communicate in English

and cites, in support, an article, ‘Language and the Earnings of Immigrants’.15 This

article is about the relationship between language skills and ‘economic assimilation’,

estimated through the level of earnings. The passage about the broader social

advantages is speculative and incidental and evidence for it is not cited. The article

did not set out to test such a hypothesis and cannot be cited in its support. Moreover,

the article does not consider whether pre-entry acquisition is a better means for

acquiring language skills than post-entry learning (which is assumed throughout).

27. The Equality Impact Assessment notes that English is not the first language of a

significant number of children in schools in England, setting out the regions in which

this is most prevalent. It goes on to cite evidence that children whose first language is

14 Dustmann et al Ibid at 68.15 Dustmann, C. and Van Soest, A. (2002) ‘Language and the Earnings of Immigrants’ Industrial and Labor Relations Review 55(3) 473-492. The relevant passage is at 486.

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not English do less well at school.16 This evidence does show a gap in achievement

(which narrowed between 2007 and 2009). The study is based on teacher-generated

profiles of very young children and the data is not controlled for other factors such as

economic disadvantage, parental education or whether the child was born in the UK.17

The outcome for older children is not considered.

28. There is evidence of a problematic relationship between parents’ language skills

and children’s academic performance but its significance in relation to other factors is

unclear. One such factor is the child’s age at the time of entry to the country of

education; the earlier the age of entry, the better.18 The specific benefits that a pre-

entry test would confer on such children have not been examined and the argument in

the Equality Impact Assessment is not coherent. Requiring a very basic level of

English before entry will not ensure that English is spoken at home. Children will

have at least one settled parent who can speak to them in English and the incoming

parent will anyway have to learn English for the settlement test. Delaying entry so

that the in-coming parent learns English may be counter-productive educationally if

the child’s entry to the UK is also thereby delayed. Post-entry interventions might be

more effective in this area particularly given the very limited advantages of the pre-

entry test, as established elsewhere in this report.

29. The Equality Impact Assessment also cites a Home Office report on refugee

integration.19 This report found that refugees with English language skills were more

likely to be employed and these skills were related to proficiency at the time of the

asylum decision which was connected to length of residence within the UK prior to

the decision. Other variables for employment were health, age, gender and previous

education and employment. Language was therefore not the only factor in securing

employment, it was effectively acquired post-entry and there was no consideration of

whether pre-entry acquisition would confer advantages in that respect.

16 Department for Children Schools and Families (2010) Early Years Foundation Stage Profile Achievement by Pupil Characteristics, England 2008/09.17 Department for Children Schools and Families (2008), Early Years Foundation Stage: Profile Handbook.18 Esser. H. (2006), Migration, Language and Integration AKI Research Review 4. (Berlin: Wissenschaftszentrum Berlin für Sozialforschung (WZB) available at: http://193.174.6.11/alt/aki/files/aki_research_review_4.pdf (accessed 7th May 2011) chapter 5.19 Cebulla, A., Daniel, M. and Zurawan, A. (2010), Spotlight on Refugee Integration: Findings from the Survey of New Refugees in the United Kingdom Home Office Research report 37.

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30. A survey based on interviews with migrants from Eastern Europe entering after

1989 is cited to support the argument that language skills assist community

participation.20 The support provided by the study is slight. Community participation

was conditioned by a range of factors of which language was only one. Others were

length of residence, plans for return, accommodation status and, partially, education

and family and immigration status.21

31. Meanwhile, other parts of the study militate against the government’s argument

but are not acknowledged. For instance, it reports that, although more than two thirds

of the interviewees spoke little or no English on arrival, more than 75% described

their English as ‘fluent’ or ‘adequate’ by the time of the interview (which may have

been many years later however). More women than men learnt English before arrival

but, by interview, more men reported themselves as fluent.22 Despite widespread lack

of English on entry, levels of employment were very high, above 95%, and almost

two thirds had been employed from the outset by white British employers, although

many were in relatively unskilled or low status work and were poorly paid.23 A sense

of neighbourhood belonging was conditioned by length of residence, the presence of

children, housing tenure, education and gender while language, along with other

variables, was not found to be a factor.24

Conclusion to Part 1

32. There may be persuasive arguments to be made for a pre-entry test but they are

not evident in the documents perused here. The pre-entry test seems to have been

initially conceptualised within the context of immigration control i.e. as a means of

determining who may enter rather than as an aid to integrating migrants whose right

to enter is accepted. References to integration came later. Implementation was

brought forward in the context of a political commitment to reduce immigration,

particularly unskilled immigration. The experience of other European countries,

discussed later in this report, suggests that the permanent exclusion of some marriage

20 Markova, E. and Black, R. (2007), East European Immigration and Community Cohesion (York: Joseph Rowntree Foundation).21 Ibid at 61-322 Ibid at 28-9.23 Ibid at 36-41.24 Ibid at 45-51.

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migrants is indeed the major function in practice of a pre-entry test, changing the

profile of marriage migrants. This is also the purpose of the pre-entry test for PBS and

other migrants and the purpose which language tests have historically served. The

first recorded use of language tests was in the late nineteenth and early twentieth

centuries when South Africa and Australia used dictation tests ‘in a European

language’ selected by the official to eliminate unwanted Asian migrants.25

33. The case made by the government on integration grounds focuses excessively on

employment and wages. As this report will show, integration is a multi-dimensional

concept and it is inappropriate to regard it as primarily an economic issue particularly

when, as here, the purpose of entry is family life not employment. The other

arguments are not well made and use of the academic literature cited is selective. The

arguments may be summarised as:

Assisting integration and social cohesion: there is little substantive

evidence provided other than the relationship between language skills

and work;

Preparing spouses for the settlement test: there is no concrete evidence

cited to show that the vast majority of spouses find the settlement test

difficult to pass. As this report will later show, learning a low level of

English before entry is unlikely anyway to assist in this regard;

Reducing the burden on public services: newly arrived spouses cannot

access public funds and no evidence is cited to show that they make

excessive demands on other services such as translation or

interpretation services;

Improving the outcomes for children: the evidence provided is slight;

Improving equality and reducing the vulnerability of newly arrived

spouses; no evidence is cited by the government.

34. Above all, there is no consideration why, in any of these areas, a pre-entry test is

better than learning English post-entry. The question is simply not considered in any

of the literature cited (but is considered later in this report). Perhaps the only area

25 K. Groenendijk (2011), ‘Pre-departure Integration Strategies in the European Union: Integration or Immigration Policy?’ European Journal of Migration and Law 13 1-30at 4; see also Dummett, A. and Nicol, A. (1990), Subjects, Citizens, Aliens and Others. Nationality and immigration Law (London: Weidenfeld and Nicolson) at 118-21.

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touched on by the government in which language acquisition before entry might be an

advantage is where the incoming spouse has been forced into marriage, is subject to

domestic violence or is otherwise vulnerable and English skills might help him or her

access help. This point is alluded to but not further explored by the government but,

due to its sensitivity, it is briefly considered here. A statement attached to this report

as Annex 2 and made by Pragna Patel of Southall Black Sisters states that, in the

experience of Southall Black Sisters, the foremost organisation working with

immigrant women facing domestic abuse, language is not an issue in preventing

forced marriage but that victims of domestic violence face many difficulties in

accessing services. These are principally connected to the total control exercised over

the victim, the practical difficulties caused by the narrow application of the domestic

violence rule and the inability to access public funds. 26 She does not see a pre-entry

language test as of being of benefit to such migrants. It should also be recalled that, as

discussed later in this report, the level of pre-entry English required is extremely low

and will not enable complex communication.

35. The government has not shown that requiring language skills at this basic level

prior to entry will bring the advantages suggested. At the same time, as demonstrated

in succeeding sections, it will represent a significant hurdle for some individuals.

Part 2: The pre-entry test from a second language acquisition (SLA) perspective

(written by Dr. Geoffrey Jordan)

Introduction

36. This section of the report comments on various aspects of the pre-entry test related

to Second Language Acquisition (SLA) and to teaching English as a second language.

My comments will be divided into the following sub-sections:

o Adult second language learning;

o The A1 test;

o Problems likely to face people having to do a pre-entry test abroad;

o Limited value of A1 test as an entry requirement.

 

26 HC 395 paras 298A-C; see also Amnesty International/Southall Black Sisters (2008), ‘No Recourse’ No Safety (London: Amnesty International).

15

Adult second language learning

37. Adult second language learning is a lengthy process that consists, essentially, in

the acquisition of a skill. Learning a second language is not like learning Geography

or Law: it is more akin to learning to swim, drive or use a computer. To be a

competent user of English as a second language requires that declarative knowledge (I

know about this) becomes procedural knowledge (I can do this), and it is thus,

essentially, a question of practice.27 Two parts of adult SLA research should be

mentioned straight away.

38. Firstly, the stages all learners go through when acquiring a second language

remain largely independent of instruction; that is to say: learners will not properly

process information in such a way that declarative knowledge becomes procedural

knowledge unless that information roughly corresponds to their current stage of

natural language development. The consequence is that overt grammar teaching at

early stages is an extremely inefficient aid to learning, and very largely

unsuccessful.28. Appropriate teaching methods are therefore critical to success.

39. Secondly, SLA research shows that the most effective way to learn English as a

second language is through immersion in an English speaking environment,29 where

learners acquire English as a result of the ‘negotiation of meaning’ while engaging in

real communication with English speakers.30 Studies of foreign language speakers

who live and work in the UK show that the majority of non-English speakers who live

in the UK in a predominantly English-speaking environment for more than 18 months

reach a B2 level of proficiency on the CEFR scale, often without attending an English

language course.31 By contrast, learning English abroad is a highly variable process.

27 Widdowson, H. (1989), ‘Knowledge of Language and Ability for Use’ Applied Linguistics 10 (2) 128-137; McLaughlin, B. (1987), Theories of Second Language Learning (London: Edward Arnold); Mitchell, R. and Myles, F. (1998), Second Language Learning Theories (London: Arnold); Pinker, S. (1984), Language Learnability and Language Development. (Cambridge, MA: Harvard University Press).28 Krashen, S. (1981), Second Language Acquisition and Second Language Learning(Oxford: Pergamon); Long, M. H. (1983), ‘Does Second Language Instruction Make a Difference? A Review of Research’ TESOL Quarterly 17 (3) 359-3.; Mitchell and Myles Ibid.29 For a review, see Doughty, C. And Long, M. (eds.) (2003) The Handbook of SLA. (Oxford: Blackwell).30 Long n.28 above.31 For example, Salt, J. (1992) ‘Migration Processes among the Highly Skilled in Europe’ International Migration Review, 26 (2) Special Issue: The New Europe and International Migration, 1992), pp. 484-505.

16

 

The A1 Test

40. Level A1 is the lowest of 6 levels of proficiency (see Table 1, below), and the

Council of Europe report of the CEFR levels suggests that approximately 70-90 hours

of instruction are needed to reach the level required.32 This is more than the 40-50

hours stated by the government in its Equality Impact Assessment, already discussed

(at para. 14 above). Even the higher figure of 70-90 hours is highly variable. It is

interesting, in this context, that the most prestigious and generally-recognized

examining body for English for Speakers of Other Languages (ESOL), the University

of Cambridge ESOL Examinations Board, sets the level for the lowest of its exams

(KET) at A2 level, for which it estimates that approximately 180 to 200 hours of

‘guided learning’ are required.33

41. A close reading of the ‘Can-do’ descriptors for Level A1, and an appreciation of

the time needed to reach a good level of communicative competence, make it clear

that those who pass the A1 test are not yet able to use English in any type of authentic

communicative event beyond what body language can probably achieve:  

32 Council of Europe (2001) Common European Framework of Reference for Languages: Learning, Teaching, Assessment (Cambridge: Cambridge University Press).33 http://www.cambridgeesol.org/exams/exams-info/cefr.html (accessed 7th May 2011).

17

 

 

Proficient

C2 Can understand with ease virtually everything heard or read. Can summarise information from different spoken and written sources, reconstructing arguments and accounts in a coherent presentation. Can express him/herself spontaneously, very fluently and precisely, differentiating finer shades of meaning even in more complex situations.

User C1 Can understand a wide range of demanding, longer texts, and recognise implicit meaning. Can express him/herself fluently and spontaneously without much obvious searching for expressions. Can use language flexibly and effectively for social, academic and professional purposes. Can produce clear, well-structured, detailed text on complex subjects, showing controlled use of organisational patterns, connectors and cohesive devices.

 

 

Independent

B2 Can understand the main ideas of complex text on both concrete and abstract topics, including technical discussions in his/her field of specialisation. Can interact with a degree of fluency and spontaneity that makes regular interaction with native speakers quite possible without strain for either party. Can produce clear, detailed text on a wide range of subjects and explain a viewpoint on a topical issue giving the advantages and disadvantages of various options.

User B1 Can understand the main points of clear standard input on familiar matters regularly encountered in work, school, leisure, etc. Can deal with most situations likely to arise whilst travelling in an area where the language is spoken. Can produce simple connected text on topics which are familiar or of personal interest. Can describe experiences and events, dreams, hopes & ambitions and briefly give reasons and explanations for opinions and plans.

 

 

 

Basic

A2 Can understand sentences and frequently used expressions related to areas of most immediate relevance (e.g. very basic personal and family information, shopping, local geography, employment). Can communicate in simple and routine tasks requiring a simple and direct exchange of information on familiar and routine matters. Can describe in simple terms aspects of his/her background, immediate environment and matters in areas of immediate need.

User A1 Can understand and use familiar everyday expressions and very basic phrases aimed at the satisfaction of needs of a concrete type. Can introduce him/herself and others and can ask and answer questions about personal details such as where he/she lives, people he/she knows and things he/she has. Can interact in a simple way provided the other person talks slowly and clearly and is prepared to help.

Table 1:Common European Framework of Reference for Languages (Council of

Europe, 2001.)

 

18

Problems likely to face people having to do a pre-entry test abroad

42. One important area of study in SLA is the effect of so-called ‘affective factors’ on

learning. SLA research shows that success in learning English as a second language

in a foreign country is affected by factors such as age, education, economic and social

position, cultural values, motivation, and quality of instruction.34 It is clear from

studies in sociolinguistics that the vast majority of the population of under-developed

countries are at a severe disadvantage, due to their lack of contact with English, their

low educational level and lack of study skills, their lack of intrinsic motivation, their

lack of economic resources, their sometimes very different cultural values and their

inability to avail themselves of any worthwhile English language instruction.35 All

these factors adversely affect some nationalities far more than others if the test is

taken in their own country, while they have a much less critical effect on their chances

of success if learning English in the UK. There is no lack of contact with English;

low educational levels and study skills are of little importance to learning a second

language using the methods adopted in the UK (there is no great cognitive burden,

and no need to ‘study’ grammar, although illiteracy is, of course a problem with

reading and writing); intrinsic and extrinsic motivation are both high; different

cultural values (such as those likely to affect attitudes to classroom learning -turn-

taking, positive/negative face, seeking help - and class and gender issues) are soon

dealt with by good pedagogy and correct learner strategies.36

43. There are other factors which make it very difficult to guarantee a ‘level playing

field’ if the test is done abroad. Among these are the following:

It is unrealistic to expect all those required to take the pre-entry test to have

easy access to effective exam preparation classes. Easy access means that a

reputable school is locally available, which is certainly not the case in many

parts of the world. Effective exam preparation classes means that an

appropriate syllabus and methodology is used by well-trained teachers in a

good classroom environment with a maximum of 20 students per class, which,

34 Skehan, P. (1989), .Individual Differences in Second Language Learning ( London: Edward Arnold); Dörnyei, Z. and Skehan, P., (2003), ‘Individual Differences in Second Language Learning’ in Doughty & Long (2003), 589 – 630.35 Fairclough, N. (1989), Language and Power (London: Longman); Phillipson, R. (1992), Linguistic Imperialism (Oxford: Oxford University Press).36 Dörnyei, Z. (2009), The Psychology of Second Language Acquisition (Oxford: Oxford University Press).

19

again, is not the case in many parts of the world. As Graddol makes clear,

standards of English language teaching vary enormously from country to

country.37 Although there is no hard evidence in the form of research studies to

support this view, the general opinion among scholars is that Northern

European countries have the highest standards, while areas of rural S.E. Asia,

Africa, and South America have the lowest. It is similarly generally accepted

that overt grammar teaching at basic level, known to achieve very little in

terms of developing oral / aural skills, is still the dominant methodology used

in Africa, the Indian sub-continent, the Middle East, South America and most

of South East Asia. In the UK (as in the USA, Australia, Canada, and many

western European countries), English as a Foreign or Second Language is

taught by professionals who use a task-based syllabus and a Communicative

Language Teaching (CLT) methodology to help learners acquire the language

by encouraging them to develop their oral communication through practice. In

such an environment, students can attain the A1 level in 40 hours. The rate at

which English is acquired in English language classrooms varies by as much

as 600% depending on classroom size, classroom conditions and pedagogy.38

In many local situations, it is likely that students will need to attend classes for

well over 100 hours in order to reach the A1 level.

Learning English in a classroom setting is an uncomfortable, intimidating and

embarrassing experience to some members of some societies, such as women

in some Muslim countries, older people, and those with limited literacy

skills.39 Such obstacles are greatly reduced for such people attending language

courses in the UK where they are likely to encounter a more welcoming, more

supportive atmosphere in a community that understand their obligation to

learn English. The applicant who learns English in the UK will also have the

support of the spouse, both as a source of knowledge and practice.

In some regions, the test may be experienced as a form of exclusion and even

correction. Fairclough and Phillipson have both argued cogently, and

produced empirical evidence to support their claim, that tests of English

proficiency assume socio-cultural norms that are inappropriate to those being

37 Graddol, D. (2006), English Next (London: British Council).38 Doughty and Long n.29 above.39 Phillipson n. 35 above.

20

tested in many parts of the world.40 These socio-cultural aspects include such

things as the following: assumptions about status, gender and age; functional

issues (greetings and leave taking, asking for information, making, accepting

and declining invitations); logical argument; and rules of discourse (turn-

taking, interruptions, asking for clarification, short answers, agreeing and

disagreeing). The result is that the pre-entry test will be easier for those

familiar with British socio-cultural norms. Phillipson describes the use of

these language tests as often being ‘thinly-disguised integration tests’.41

The examining must be done by an approved test centre, and the Home Office

Border Agency gives a list of approved centres on the UKBA website,

discussed in the next section. The list consists of a short number of major

language service providers and many areas of the world are not covered. The

question of guaranteeing strict testing and marking policies is therefore a

major concern. If the test is of speaking and listening, the proper training and

supervision of examiners is particularly important. For example, the IELTS

(International English Language Testing System) is an international

standardised test of English language proficiency, jointly managed by the

University of Cambridge ESOL Examinations, the British Council and IDP

Education Pty Ltd. 42 It lays down strict guidelines for testing and provides a

strong argument against any proposal that depends for its implementation on

the proliferation of local test centres.

While the legal requirement is only for speaking and listening, I have been

informed that many test centres will only test in all four areas or require

reading skills to take the test. If this is the case, then this again discriminates

against those to whom reading and writing are unfamiliar and intimidating.

44. As it is probable that only a limited range of test centres will be available and that,

in many cases, they will be difficult for some applicants to access, many applicants

will find themselves facing an unenviable dilemma: either they relocate for an

indefinite period to the test centre, with all the social and economic obstacles that

involves, or they obtain tuition locally, with a good chance that the tuition will be of

poor quality and inappropriate to their needs, thus seriously prejudicing their chances

40 Fairclough n. 35 above and Phillipson n.35 above.41 Phillipson ibid.42 http://www.ielts.org/institutions.aspx (accessed 9th May 2011).

21

of passing the test. We may conclude that it is very likely that the pre-entry test

discriminates by nationality, since the factors that make the test more difficult to pass

are much more likely to be present in under-developed countries.

Limited value of A1 test as an entry requirement

45. Taking into account the very low level of the A1 test, arriving in the UK

possessing A1 speaking and listening skills is unlikely to make any significant

difference to a person's ability to function as a long term resident in the UK, in terms

of social integration, accessing services, gaining employment, or helping their

children's education. There are studies of adult students of English in Spain, Greece,

Germany and Japan who have passed the Cambridge KET exam (A2 level), and who

were completely unable to maintain a basic communicative exchange with English

people on a visit to the UK. 43 A low level test like the A1 test can serve as a measure

of progress, and can serve diagnostic ends, 44 but it is not a sensible measure of ability

to use English for communicative purposes.

46. If the expectation is that the migrant will continue their English studies once they

are in the UK, so as to prepare for the settlement test, then having passed the A1

counts for very little. If the migrant goes to a language class in the UK with only the

A1 test level, he or she will be placed in the course for beginners. My experience as a

language teacher, director of studies and academic researcher is enough for me to

confidently assert that any student starting a modern English as a second language

course with the ‘advantage’ of having passed the A1 level test will see that advantage

disappear after the first 40 hours of the course. The pre-entry test is of almost no value

in getting the learner off to ‘a flying start’.

47. As mentioned above, for most people, two years immersed in an English-speaking

environment, given enough time spent communicating naturally in the language with

English speakers, is more than sufficient to attain a B2 level of proficiency in

speaking and listening without attending an English language course. While there is

every reason to suppose that couples and families who speak a foreign language will

communicate among themselves in their native language, spouses who join partners

43 Schmidt, R. (2001), ‘Attention’ in Robinson, P. (Ed.), Cognition and Second Language Instruction 3-32 (Cambridge: Cambridge University Press).44 Bachman.L. (1996) Language Testing in Practice (Oxford: Oxford University Press).

22

living in the UK find themselves in the optimum environment for learning English.

English is all around them: in the media, in the shops, in all the public services, and in

everyday social interaction. Moreover, motivation is one of the key factors in SLA,45

and spouses wishing to remain in the UK with their partners have very high extrinsic

motivation pushing them to take advantage of the opportunities to learn English in the

best way possible: naturally (by engaging in real communication in an English-

speaking environment) with a little help from expert tuition.

 

 Part 3: Obstacles to passing the pre-entry test in the country of origin (written by Anne-Marie Clift)

48. This part of the report looks at those exams, and their providers which meet the

entry level threshold of the pre-entry test. The threshold is CEFR Level A1

equivalency in Speaking and Listening and the providers are those named in the new

list of Approved Test Providers published on the UK Border Agency website in April

2011.46 Tests on the list which only examine to levels in excess of the A1 level

specified for the pre-entry test are not relevant to this study and are not considered

here.

49. Research for this part of the report study has mainly been undertaken through the

internet which is the medium via which information from the relevant UK

Government agencies is made available to applicants. The test providers also

promote their services largely via the internet and some of the tests are conducted

online or are computer-based. Word of mouth and information-gathering through

informal social networks or self-designated experts may be the preferred research

method for applicants and their partners. However, that approach may be unreliable

and lead to expensive errors, particularly as the list of approved test providers has

recently changed (April 2011), making advice based on prior experience out-dated.

The ability to undertake internet-based research by the sponsor in the UK or the

applicant in the country of origin therefore becomes more important, if only to verify

advice received from other sources.

45 Dörnyei n.36 above; Dörnyei and Skehan n.34 above; Mitchell and Myles n.27 above.46 http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/new-approved-english-tests.pdf, (accessed 24 April 2011).

23

50. Attempts have been made to obtain more detailed information about availability,

costs, waiting times, test content and tuition through email enquiries to the test

providers but these have met with only limited responses. There are therefore some

significant gaps in the information in this report, information that will presumably be

equally difficult for applicants to obtain.

51. This part of the report considers the following issues:

whether testing to A1 speaking and listening is available in the

exemplar countries;

how applicants from four exemplar countries (India, Pakistan, Thailand

and Yemen) might access information about the pre-entry language

test from UK government agencies and test providers; the likely costs

of taking the tests and the practical obstacles involved in taking the test

in the exemplar countries;

the particular economic, social and cultural factors pertaining in the

exemplar countries which might reasonably impact on applicants’

ability to access the language testing process.

52. This study finds that there are significant concerns about the implementation of

the pre-entry test. These concerns are summarised below and explored in further

detail in Annex 3 to this report.

53. The single most serious concern is that it is, in practice, impossible for many

applicants to take a test of only speaking and listening in their country of origin. The

new list of UKBA-approved Test Providers contains five approved testing

organisations. They provide eight tests between them. Two of these tests are provided

only in the UK, leaving six possible tests. Five out of these six tests require a

significant degree of literacy either to take the test or to reach the level required for

certification.

54. Of the approved providers, only one, Trinity College, offers a test that only

requires speaking and listening. The exam lasts seven minutes and takes the form of a

one-to-one conversation between the candidate and the examiner who is a native

24

English speaker. The examiner initiates the conversation which is based around

simple personal matters. Email advice from Trinity College’s London headquarters

indicates that it does not offer tests in any of the four exemplar countries of Yemen,

Thailand, India or Pakistan (a separate internet search does suggest one Trinity

College provider in India although it is not known if this is genuine).47

55. Of the remaining providers:

Cambridge ESOL KET: According to the search facility on the Cambridge

ESOL website, the test is available in all 4 countries through approved agents.

However, emails to the contact details provided either bounced or received no

response for Pakistan, Thailand and Yemen, so it has not been possible to

verify availability in these countries. The listening and speaking tests require

English reading skills to identify answers. The subject matter of the tests

includes meetings, holidays, supermarkets, leisure activities, pets, birthdays,

all matters which may be unfamiliar to migrants from a different culture.

Cambridge ESOL BULATS: Its availability in India, Pakistan and Thailand

could not be established due to emails to designated contacts for these

countries receiving no reply or bouncing back. The test is not available in

Yemen. It is not clear whether the speaking and listening tests can be taken

separately. In any event, the listening test is integrated with reading and the

speaking test also requires reading skills. The test focuses on the language of

the workplace in a commercially developed environment and is inappropriate

to the needs of family migrants who may not be familiar with this type of

environment.

City and Guilds International ESOL Diploma: It has not been possible to

establish availability in India or Pakistan. The test is not available in Thailand

or Yemen. Speaking ability is tested separately but listening is integrated with

reading and writing in a separate test. The listening part of the paper requires

reading skills to select the correct answer. It seems that both tests are

necessary to achieve the diploma which the UKBA cites as its requirement on

the list of Approved Providers, The content of the test is described as

‘everyday expressions and very basic phrases for practical needs; ask and

answer questions about personal details’.47 See section 3 of Annex 3.

25

ETS TOEIC: The test appears to be available in Thailand and Pakistan but no

reply has been received to enquires about India and Yemen. While Speaking

and Writing are separate tests, Listening and Reading are tested together. The

sample Speaking test on the website contains 11 questions, five of which

require the candidate to be able to read English, As well as being combined

with Reading, the Listening section of the test requires candidates to read

questions and possible answers and choose a multiple choice answer.

The Pearson Test in English Academic PTE: The test is available in India,

Pakistan and Thailand, but not Yemen. The nearest test centre to Yemen is in

Saudia Arabia. Candidates would need to be familiar with the vocabulary of

history, business and current affairs to understand much of this test. This is a

computer-based test requiring written answers ranging from a single word to a

70 word summary. Some questions require reading skills in order to choose

the correct answer.

56. There are thus serious concerns about the list of Approved Test Providers. It is

very likely that, to meet the pre-entry test, migrants in many countries will have to

acquire language skills beyond speaking and listening due to the absence of suitable

approved providers in their country of origin. This problem derives from the decision

by UKBA to use the same list of approved providers as that specified for the PBS

which has different requirements for English language proficiency. Specifically

UKBA has approved tests and test providers which exceed the requirements for the

pre-entry test specified in the immigration rules in one of the following ways:

by integrating testing of Reading and/or Writing with Speaking and Listening,

resulting in candidates being tested in skills not specified for the pre-entry test

for spouses and partners;

by requiring reading and writing skills in English in order to understand and/or

complete the test material;

by requiring reading skills in English in order to navigate the user interface for

those tests which are offered in a computer-based format;

by assuming a degree of literacy in test candidates, as is the case in all but one

of the six tests relevant to this study. The only test which does not make this

assumption is the Trinity College London Graded Examination in Spoken

26

English, and, according to Trinity College’s London headquarters, this test is

not available in any of the countries studied for this report;48

by including scores for Reading and/or Writing in the Minimum Grade

descriptors given in the list for four of the six tests.49

57. It is difficult to see how demand for testing only at the level required for the pre-

entry test can be met when the only approved provider of such a test – Trinity College

London – does not offer it in at least three of the exemplar countries. This means that,

whilst at first sight the UKBA list of approved test providers appears to offer a

reasonable choice to applicants, in fact they may find it very difficult to find

accessible tests which enable them to demonstrate their proficiency at the designated

level. This is because of the problems highlighted in this report of most of the tests,

by their structure or content, assuming proficiency beyond the level required. It was

not possible to determine whether providers were willing to offer the test without also

providing tuition. However, the language used on some of the sites suggested that

applicants were expected to take tuition with the provider and this would be an

advantage for them.50

58. There are concerns about the equitable, accessible and accurate provision of

information by UK Government agencies and their commercial partners in the

exemplar countries. Specifically, there is significant inconsistency in the degree of

provision of information in local languages in different countries which could result in

differential advantage or disadvantage to applicants depending on their country of

residence when applying for a marriage visa.51 The UK Border Agency website,

which must be regarded as the definitive information source, is only available in

English. Other official sites such as High Commissions and their commercial partners

do not always redirect those looking for information back to the UKBA website at the

appropriate stage. Thus, depending on the information navigation path taken,

someone looking for information may come across an out of date and inaccurate list

of test providers before they come to the approved list.52

48 For more information see section 2.1 of Annex 3.49 For more information see section 2.2 of Annex 3.50 See section 2.2.2 of Annex 3. 51 For more information see section 1.2 of Annex 3.52 For more information see section 1.2.1.1 of Annex 3.

27

59. There are concerns about the subject matter of the test materials offered by some

test providers. Those tests which are oriented towards academic or business English

include scenarios and associated vocabulary that are very unlikely to be familiar, even

in their native language, to a significant proportion of applicants from the exemplar

countries because of the economic, social and cultural conditions in those countries,

such as the high proportions of their populations living in rural areas and working in

agriculture and the relatively low level of educational attainment. This creates an

additional obstacle to them in seeking to demonstrate their English language

proficiency.53

60. There are concerns about equitable access to information and to testing because of

the use of computers and the internet for providing information about the testing

requirement and process and for delivering some of the tests. This approach assumes

an ease of access to computers and the internet plus a degree of familiarity with

computer-based information search and other software which is unrealistic in the

exemplar countries in which internet usage ranges between 7 to 18% of the

populations, compared to more than 80% in the UK. Even if applicants have the

support of their UK-based spouse, the computer skills and access and the English

language fluency needed to find the necessary information would make this a

challenging task.

61. Although limited information is available about the costs of testing, what there is

indicates that the cost of the test is a concern given the proportions of their

populations living below or around the poverty line in the three of the four countries

studies – India, Pakistan and Yemen. 54 The associated expenses would of course

increase if costs were to be included for:

tuition to prepare for the test;

travelling to take the test (due to distance to the test centre within the home

country or the need to travel to a neighbouring country);

53 For more information see sections 2.2.1.2; 2.2.3; 2.2.4 and 4 of Annex 3.54 For more information see sections 3 and 4 of Annex 3.

28

associated costs for a companion for a female applicant where the cultural

norms inhibit women from travelling alone or being alone in any social

situation such as a test.

62. Where information is provided about availability and cost of testing in particular

countries it can be misleading, contradictory or incomplete.55

63. The cost of testing is also an issue of gender equity as women have much lower

labour force participation rates in India, Pakistan and Yemen and are therefore likely

to have less income to contribute to meeting the costs of testing process. There are

also concerns about gender equity in accessing both information and testing due to the

significantly lower literacy rates of women in three of the countries studied here –

India, Pakistan and Yemen.56

64. The individual concerns listed above coalesce to form a general concern about the

availability of appropriate testing facilities and the complexity of the whole task of

understanding the requirement for the pre-entry test and taking the test. This research

has been undertaken by a native English language speaker, educated to post-graduate

level, with significant experience of computer-based research and ready access to an

up-to-date computer and an internet connection. Even with this degree of language

and computer fluency and resource it has been difficult to find reliable, consistent and

complete information. Although the UK sponsor may be expected to assist, this

would still be a significantly greater challenge for a less well-educated, less well-

resourced individual with a weaker grasp of English.

Part 4: Exemptions and Exclusion

65. The government has exempted a small number of countries where it accepts that

there is no testing centre available. The guidance to applicants supplied with the

defendant’s acknowledgement of service states that the existence of a single test

centre in-country is considered sufficient irrespective of distance, delay or cost while

poverty, illiteracy or limited education are not grounds for exemption. Judging by the

findings of the previous part of this report, the exemption does not apply where a

55 For more information see section 2.1 of Annex 3.56 For more information see section 4 of Annex 3.

29

testing centre exists but testing only to A1 speaking and listening is not available.

There is also an exemption for those aged 65 or over, who have a disability (physical

or mental condition) or where there are exceptional compassionate circumstances

which prevent them from meeting the requirement.

66. The Immigration Directorate Instructions state that the disability exemption will

be applied only on production of satisfactory medical evidence which specifies the

disability and from which it may be concluded that exemption is justified. This must

be provided by a medical practitioner who is qualified in the appropriate field. The

difficulties of obtaining such a definitive view from a suitably qualified practitioner in

countries where diagnostic facilities and medical services are relatively undeveloped

are not considered. Presumably, given recent case law on the question, the entry

clearance service will accept other forms of evidence that show that the conditions in

the immigration rules have been met but applicants may not be aware of this and must

anyway risk paying the visa fee to find out.

67. The Instructions also suggest that the criteria for ‘exceptional compassionate

circumstances’ are tightly controlled. The applicant must demonstrate that as a result

of their circumstances they are unable to access facilities for learning English before

coming to the UK. Independent evidence of an inability to attend, prior/previous

attendance or attempts to access learning must be provided. Situations which might

qualify include an urgent need for entry due to serious illness in the UK sponsor or

conflict or humanitarian disaster which means it would not be ‘proportionate’ to

expect an applicant to pass the pre-entry test. Decisions are made on a case-by-case

basis and it seems that applicants cannot judge before the application is made and the

fee paid if theirs is an instance which qualifies.

68. The exemptions do not adequately address the concerns identified in the previous

two sections of this report. There are likely to be many instances not covered by the

exemptions where there will be a significant interference in family life. Under the

immigration rules, entry clearance officers must exercise their duties in compliance

with the Human Rights Act 1988. There is no specific provision in the rules or

guidance for article 8 cases that fall outside the prescribed exemptions but,

presumably, entry clearance officers are instructed to accept cases where there would

30

otherwise be a breach of article 8. However, there is no published guidance on the

matter and no indication of how well prepared entry clearance staff are to make such

decisions.

69. Educational qualifications may sometimes be used to show that the requirements

of the pre-entry test have already been met. Paragraph 281(i) (a) (iv) of the rules

exempts applicants who have obtained an academic qualification (not a professional

or vocational qualification), deemed by UK NARIC to meet the standard of a UK

Bachelor's degree from an educational establishment in any of the exempt countries

(with the exception of Canada).57 Alternatively, the applicant may obtain an academic

qualification (not a professional or vocational qualification) again deemed by UK

NARIC to be equivalent to a UK Bachelor's degree and which was taught or

researched in English. This may be through certification by NARIC or through other

evidence although it is not clear what would be acceptable. In June 2011, the

immigration rules will be amended so that higher degrees certified by NARIC to have

been taught in English will also qualify.58 However, the exclusion of vocational

qualifications means that only a relatively narrow range of qualifications permits

exemption from the test.

70. The pre-entry test cannot apply to EEA nationals. Some other nationalities are

exempt under the immigration rules. These are described in the Instructions as

‘majority English speaking’. While the list includes countries in the Caribbean,

numerically speaking, most of those exempted come from the countries of former

European settlement. The criterion seems to produce some arbitrary results. Canada is

an exempt country whose official languages are English and French. According to the

2006 Canadian census, 22% of the population have French mother tongue and 20%

have another non-English mother tongue. The majority (64.2%) of Francophones

living in Quebec are not bilingual in English and French although those living outside

Quebec are more likely to be so.59 Naturalisation in Canada requires language

57 UK NARIC is the national agency responsible for providing information and advice about world-wide vocational, academic and professional skills and qualifications. They charge a fee for their services (see http://www.naric.org.uk/ accessed 7 May 2011).58 Email from Alison Harvey, General Secretary ILPA 3 May 2011.59 Information taken from 2006 Census: The Evolving Linguistic Portrait, 2006 Census: Highlights available at: http://www12.statcan.gc.ca/census-recensement/2006/as-sa/97-555/p1-eng.cfm (accessed 13 February 2011).

31

competency in French or English.60 It is therefore possible that a proportion of

Canadian marriage migrants do not speak English but they do not have to meet the

pre-entry language requirement.

71. Their position may be contrasted with that of a non-exempt country, Nigeria.

English is the official language but, given the plurality of local languages, short

average schooling and levels of illiteracy, it is likely that some less well-educated

people speak no or little English.61 Nonetheless, English is the universal language of

instruction throughout nearly all education (I understand that some rural primary

schools may use another language) and anyone who has undertaken secondary

education will have been taught in English.62 Yet, to be exempt from taking the test, a

Nigerian national must hold an academic (not vocational or professional) qualification

equivalent to a bachelor’s degree certified by NARIC to be of the required level and

as having been taught in English.63

72. It has not been established that countries which are subject to the pre-entry test

coincide with those for whom integration is most problematic. Indian migrants, for

example, who must meet the requirement have been a major presence in the skilled

migration routes into the UK and make a strong fiscal contribution to the UK

economy.64 India and Nigeria both perform better in the settlement test than exempt

countries such as Antigua, Grenada and Jamaica.65

73. Migrants from countries which are exempt as majority English speaking do, on

average, have high pass rates for the settlement test. A recent study draws on pass

rates for the settlement test between 2005 and 2010 and shows that, for the 17 states

designated as ‘majority English-speaking’, the pass rate of the settlement test is 86 per

cent compared to 70 per cent for the rest of the world. There was however significant 60 Information taken from Citizenship and Immigration Canada available at: http://www.cic.gc.ca/english/citizenship/become-eligibility.asp#language (accessed 13 February 2011).61 https://www.cia.gov/library/publications/the-world-factbook/geos/ni.html (accessed 13 February 2011).62 http://nigeria.usembassy.gov/nigeria_education_profile.html (accessed 13 February 2011).63 A certificate of comparability currently costs £40 plus VAT if obtained online or £46 plus VAT if obtained by post for the statement of comparability. A fee is also payable for the certification of English language proficiency.64 Home Office (2010), Control of Immigration Statistics United Kingdom 2009, Statistical Bulletin 15/10 at 61; Somerville, W. and Sumption, M. (2009), Immigration in the United Kingdom: The Recession and Beyond (London: Equality and Human Rights Commission) at 10.65 http://news.bbc.co.uk/1/hi/8707152.stm (accessed 31st March 2011).

32

variation between English-speaking states. New Zealand, Australia, the USA, Canada,

and Ireland had a combined pass rate of 98 per cent. For the other 12 designated

states, all in the Caribbean area, the pass rate was 70 per cent, close to the worldwide

average of 71%.66 It cannot be assumed therefore that English language competency

automatically aids integration.

74. As well as the exemptions for particular nationalities, the pre-entry test is

considered unnecessary for several other groups of migrants even though they may

also settle and, in most cases, be economically active. There is no pre-entry test for

the spouses of PBS migrants and for those entering under several other categories in

the immigration rules, for example, para. 186 (people with UK ancestry), para. 245Q

(Tier 1 Investor), para. 245Z (intra-company transfer), para. 266 (spouses, who may

themselves be under 65, of retired persons of independent means), para. 276

(members of armed forces and their spouses).

Part 5: Effect of the pre-entry test on the UK’s ethnic minority communities

75. It is probable that UK citizens and nationals from some minority communities will

be more affected by the pre-entry test than others because they are more likely to

engage in international marriages. A detailed picture is difficult because the available

research on marriage-related migration to Britain has been dominated by studies of

South Asian populations.67

76. Numerically speaking, the Indian sub-continent is the largest source of migrants

entering the UK as spouses. In 1999, 38.5% and in 2009, 32.31% of spouses entering

the UK were from that region.68 The next largest groups were the rest of Asia and

66 Ryan, B. (2010), Country Report: United Kingdom available at http://www.ru.nl/law/cmr/projects/overview/intec/ (accessed 7 May 2011) at .67. For more on the INTEC project of which this report forms part, see para. 99 of this report.67 For example, Ballard, R. (1990), ‘Migration and Kinship: The Differential Effect of Marriage Rules on the Processes of Punjabi Migration to Britain’ in Clarke, C., Peach, C. and Vertovek, S. South Asians Overseas: Contexts and Communities (Cambridge: Cambridge University Press) 219 – 249; Shaw, A. (2001), ‘Kinship, Cultural Preference and Immigrations: Consanguineous Marriage among British Pakistanis’ Journal of the Royal Anthropological Institute 7(2) 315-334; Shaw, A. and Charsley, K. (2006), ‘Rishtas: Adding Emotion to Strategy in Understanding British Pakistani Transnational Marriages’ Global Networks 6(4) 405-21.68 Figures calculated from Home Office (2010), Control of Immigration Statistics United Kingdom 2009, Statistical Bulletin 15/10 at 62 and Home Office (2004), Control of Immigration: Statistics United Kingdom 2003. Statistical Bulletin 12/04, Table 1.6.

33

Middle East (14.07% in 1999 and 24.78% in 2009) and Africa (13.79% in 1999 and

17.85% in 2009). Taken together, these regions represented about three quarters of all

marriage migration in 2009 and, in all cases, the pre-entry test would now have to be

passed. It is reasonable to imagine that the increases in the proportions of migrants

entering from Asia, the Middle East and Africa since 1999 are connected to increased

migration from those regions in the past decade. Marriage migration from the Indian

sub-continent, which has been a feature of marriage migration since the 1960s, has

declined slightly as a proportion of all marriage migration but remains high.

77. It is likely that many of these are entering through marriage to spouses whose

families originated from these regions. Immigration statistics do not show the ethnic

or national origin of sponsors to marriage applications. It is known that it is common

for British Pakistani, Bangladeshi, and some British Indian young people to marry a

spouse from their parents’ or grandparents’ country of origin, whilst diversified

migration from India to Britain has also probably contributed to the rise in grants of

spousal settlement to Indian nationals.69 Inter-marriage rates in these communities are

known to be relatively low. Richard Berthoud found that those of South Asian and, in

particular Pakistani or Bangladeshi origin, were the least likely to marry someone

from a different ethnic group.70 Modood and Berthoud quoted figures for inter-

marriage of 4% for Indians and 1% for Pakistanis and Bangladeshis although this

research dates from 1997 and the position may have changed.71 The other regions

69 Charsley, K. (2005), ‘Unhappy Husbands: Masculinity and Migration in Transnational Pakistani Marriages’ Journal of the Royal Anthropological Institute (N.S.) 11 85-105; Charsley, K. (2006), ‘Risk and Ritual: the Protection of British Pakistani Women in Transnational Marriage’ Journal of Ethnic and Migration Studies 32(7) 1169-88; Charsley, K. (2007), ‘Risk, Trust, Gender and Transnational Cousin Marriage among British Pakistanis’ Ethnic and Racial Studies 30(6) 1117-31; . Gardner, K. (2006), ‘The Transnational Work of Kinship and Caring: Bengali-British Marriages in Historical Perspective’ Global Networks 6(4) 373-87; Gardner, K. and Shukar, A. (1994), ‘‘‘I’m Bengali, I’m Asian, and I’m Living Here”: The Changing Identity of British Bengalis’ in Ballard, R. (ed.) Desh Pardesh: The South Asian Presence in Britain (London: Hurst and Company) 142-64; .Batnitzky, A., McDowell, L. and Dyer, S. (2007) 'Middle-Class Global Mobility? The Working lives of Indian men in a West London Hotel' Global Networks 8(1) 51-70; cf. Xiang B. (2008), 'Gender, Dowry and the Marriage System of Indian Information Technology Professionals' in Palriwala, R. and Uberoi, R. (eds) Marriage, Migration and Gender (London: Sage) 235-60; Xiang, B. (2007) , Global ‘Body Shopping’: An Indian Labor System in the Information Technology Industry (Princeton: Princeton University Press).70 Berthoud, R. (2001), Family Formation in Multi-Cultural Britain:Three Patterns of Diversity Institute for Social and Economic Research (Essex: University of Essex) at 17.71 Modood, T., Berthoud, R., et al (eds) (1997) Ethnic Minorities in Britain: Diversityand Disadvantage. The Fourth National Survey of Ethnic Minorities, (Policy StudiesInstitute, London) at 29-30 (quoted in Samad, Y. and Eade, J. (2002), Community Perceptions of Forced Marriage (London: Foreign and Commonwealth Office) at 29).

34

where marriage migration is most frequent include countries, described by

anthropologist Roger Ballard as ‘the swath of territory which runs from North Africa

through the Eastern Mediterranean and the Middle East to South Asia’, where

arranged marriages remain common.72 Many of these migrants are thus also likely to

marry within their own ethnic group either because of arranged marriage or because

of transnational relationships established through family, business, the church etc.

78. Estimates of the proportions of the UK-based populations entering these

international marriages vary both overall and between the different nationalities. Ann

Cryer stated in 2006 that 80 per cent of marriages by her Muslim constituents were

transcontinental.73 Shaw found a rate of about 70 per cent amongst the Pakistanis she

studied in Oxford.74 Dale suggests that the figures are somewhat lower, around half of

all marriages in Pakistani and Bangladeshi communities and about one quarter of all

marriages in Indian communities being to an overseas spouse. However, this was not

a comprehensive survey and relied on figures that are now quite old.75 There is also

some anecdotal evidence that the rate of international marriage in the Pakistani

community is declining. Nonetheless, it seems that a substantial proportion of

members of these communities still enter overseas marriages.

79. Because their members often marry members of their own ethnic or national

group from overseas, the pre-entry test will affect some of the UK’s communities

more than others, most evidently those of South Asian origin but possibly also other

communities where there is less information available about their marriage patterns.

These communities are disadvantaged not only against other UK communities where

international marriages are less common but also against groups who are not

necessarily citizens but who are able to use other routes of entry. The obvious contrast

is with rights of entry under EU law to EEA nationals exercising free movement

rights. The 2009 immigration statistics show that more than 60,000 EEA nationals and

their family members were recognised as having the right to reside under EU law. Of

72 Ballard, R. (2008), ‘Inside and Outside: Contrasting Perspectives on the Dynamics of Kinship and Marriage in Contemporary South Asian Transnational Networks’ in Grillo, R. (ed) The Family in Question: Immigrants and Minorities in Multicultural Europe (Amsterdam: University of Amsterdam Press, 2008) 37–70 at 49.73 HC Hansard 2nd November 2006 col. 165WH.74 Shaw n.67 above at 327.75 Dale, A. (2008), Migration, Marriage and Employment Amongst Indian, Pakistani and Bangladeshi residents in the UK. CCSR Working Paper 2008-02 (Manchester: University of Manchester).

35

those issued outside the EEA (not necessarily all to family members), the single

largest number (4,270) were issued in Brazil compared to 3,880 for the entire Indian

sub-continent.76

80. Another comparative disadvantage is with spouses of migrant workers who, as

mentioned in Ppart 4 above, can enter the UK without meeting the pre-entry test.

Amongst spouses settling in the UK, nationals of the Philippines now represent the

third largest national group and this has been attributed to the entry of skilled workers

accompanied by their spouses.77 These couples can enter the UK and live together

without the accompanying spouse meeting the pre-entry language requirement

(although they wait longer to settle than do the spouses of UK residents and citizens).

81. There are therefore groups of non-nationals (or nationals using the Surinder Singh

route) whose spouses can enter, live and settle in the UK without meeting the pre-

entry test. UK nationals and residents who enter international marriages, and who are

likely to be heavily represented in certain communities, are thus placed at a

disadvantage not only against their fellow citizens but against more recent migrants.

Part 6: Does the pre-entry test enhance integration? (written by Dr Katharine

Charsley)

82. The government claims that a pre-entry language test will improve spouse

integration. Part 1 of this report found that the evidence cited by the government was

weak. This section of the report takes a closer look at the concept of integration and

what is known about the integration of migrant spouses.

The concept of integration

83. Integration is a multi-faceted, regionally variable, and contested concept. Varying

histories of nationhood underlie the differing approaches to integration taken by

76 Home Office (2010), Control of Immigration 2009: Supplementary Tables, Table 4b. 77 Charsley n. 10 above.

36

European States.78 As the United Kingdom was formed by the bringing together of

several nations, political belonging predated ideas of national or ethnic belonging and

this has informed the government approach to integration in the UK. The history of

German immigration policy, and subsequent integration policy, on the other hand,

must be understood in the context of the late development of the State, with strong

pre-existing ethnic nationhood.79 Joppke has however argued that European

integration policies demonstrate increasing convergence.80

84. Despite historical variation in national approaches, attempts have been made to

provide a unified definition of integration. Integration may be broken down into

various categories (economic, social, cultural and civic), which are sometimes

considered separately. Language and economic activity are facets of integration but so

are many other processes.81 Migrants may be well integrated by some measures and

less well integrated by others. For example, a recent British study of Muslim migrants

found that measures of integration varied across these domains, so that for their

sample population, ‘indications of social interaction and civic participation seem to be

relatively low compared to economic well-being, English fluency and participation in

mainstream political processes’.82 Such variations, and the possible interaction

between these categories, render the isolation of one aspect of integration for

consideration problematic.83

78 Brubaker, R. (1992), Citizenship and Nationhood in France and Germany (Cambridge, Mass: Harvard University Press); Favell. A. (2001), (2nd ed.) Philosophies of Integration: Immigration and the Idea of Citizenship in France and Britain, (London: Palgrave Macmillan).79 Castles, S. and Miller, M.J. (2009), (4th ed.) The Age of Migration) (London: Palgrave MacMillan).80 Joppke, C. (2007), ‘Beyond National Models: Civic Integration Policies for Migrants in Western Europe’ West European Politics 30 (1) 1-22.81 See, for example, the Common Basic Principles of an Immigrant Integration Policy adopted by the EU Council: Conclusions of the European Council adopted at 2618th Council Meeting 19th November 2004; press release available at: http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/jha/82745.pdf (accessed 8th April 2011).82 Jayaweera, H. and Choudhury, T. (2008), Immigration, Faith and Cohesion: Evidence from Local Areas with Significant Muslim Populations (York: Joseph Rowntree Foundation); Jayaweera, H. (forthcoming) ‘Migration, Integration, and Transnational Involvement: Muslim Family Migrants in Urban Areas in Britain’ in Charsley, K. (ed) Transnational Marriages London: Routledge.83 Jayaweera and Choudhury ibid..

37

85. Recent discussion of integration has expanded from a focus on the immigrant

alone to a broader societal perspective. Favell, for example, defines the problem of

integration as how a political system achieves:

… stability and legitimacy by rebuilding communal bonds of civility and

tolerance – a moral social order – across the conflicts and divisions caused by

the plurality of values and individual interests.... the fundamental theoretical

question concerns more than just the integration of new ethnic minorities. It is

as much a general question about the ‘glue’ of a particular society.84 .

A migrant’s own efforts and attributes are only one part of the complex set of factors

which may hinder or facilitate integration. Legal and institutional frameworks and

policies and the attitudes of the host population are just as critical.85 For example,

there has been much concern about the alleged physical self-segregation of some

communities of migrant origin. However, some have argued that the causes of such

separation are mainly located in the past behaviour of housing authorities, estate

agents and white residents.86

86. In the UK, the Commission on Integration and Cohesion (CIC) considered the two

(closely related) concepts of cohesion and integration together. Cohesion, they wrote

in their final report, is ‘the process that must happen in all communities to ensure

different groups of people get on well together’, while integration concerns migration

in particular and is a process whereby ‘new residents and established residents adapt

to one another’.87 The Commission found that ‘deprivation remains a key factor in

cohesion’.88 The CIC definition of cohesiveness is built on a wide range of

characteristics which include: similar life opportunities and access to services, and

trust in the fairness and openness of institutions arbitrating between different

interests.89

84 Favell n. 78 above at 2-3.85 Spencer, S. (forthcoming) The Migration Debate (Bristol: The Policy Press).86 Finney, N. and Simpson, L. (2009), Sleepwalking to Segregation?: Challenging Myths About Race and Migration (Bristol: The Policy Press).87 Commission on Integration and Cohesion (2007) Our Shared Future (available at: http://collections.europarchive.org/tna/20080726153624/http://www.integrationandcohesion.org.uk/~/media/assets/www.integrationandcohesion.org.uk/our_shared_future%20pdf.ashx accessed 7th May 2011) at 38.88 Ibid at 889 Jayaweera & Choudhury n.82 above at 4.

38

87. Despite this recognition of the two-way nature of integration processes, measures

aimed at promoting the integration of migrants, such as the introduction of language

and citizenship tests, address only the migrant-side of the integration equation.90

While migrants do have obligations, migrants’ willingness to engage, and their

language and other skills are only part of the context producing outcomes in terms of

integration: ‘A low educational status and insufficient language skills of migrants, for

example, may account for low levels of labour market participation. However, this

may equally be an effect of discriminatory rules and practices’.91 Kofman and

Raghuram note that skilled women may enter as family migrants but encounter

barriers to pursuing career aspirations (e.g. lack of access to finance for conversion

courses).92 In other words, migrant-side attempts to integrate may mean little or even

have negative effects if the response of the ‘host’ population is not inclusive.93

88. In addition to the direct impact of discrimination, as the CIC report suggests,

perceptions of inequality between individuals may also undermine integration. Hence

when considering the probable effectiveness of proposals that aim to increase

integration, attention should be paid to any negative impacts on equality, and on the

perceived fairness of processes. Measures that are perceived as discriminatory and

exclusionary are likely to be counter-productive to integration by producing ill-

feeling, and undermining equality of opportunity and participation. Parts 2 and 3 of

this report suggested that the pre-entry test will be experienced by some migrants as

exclusionary and discriminatory, a suggestion supported by the evidence from other

European countries (see Part 7). It may well therefore diminish rather than promote

integration.

90 Carrera, S. (2006), A Comparison of Integration Programmes in the EU: Trends and Weaknesses Challenge Papers. No. 1 (Brussels: The Centre for European Policy Studies) at 6.91 Entzinger, H. and Biezeveld, R. (2003), Benchmarking in Immigrant Integration. Report for the European Commission (available at: http://74.125.155.132/scholar?q=cache:EGj_8i9JZL8J:scholar.google.com/+migrant+integration+discrimination+Entzinger&hl=en&as_sdt=0,5 accessed 7th May 2011).92 Kofman, E. and Rahuram, P. (2006) ‘Gender and Global Labour Migrations: Incorporating Skilled Workers’ Antipode 38 (2) 282-303.93 Research on Mexican Americans has suggested that members of the second generation may actually experience more discrimination than their parents due to their expansion beyond the immigrant enclave, with adverse health consequences (Viruell-Fuentes, E. A. (2007), ‘Beyond Acculturation: Immigration, Discrimination and Health Research among Mexicans in the United States’ Social Science and Medicine 65(7) 1524-35).

39

Integration and marriage-related migration

89. Issues of marriage-related migration and integration have received considerable

attention in political debates in several other European countries but have received

somewhat more limited attention in the British context.94 The arguments have

primarily concerned a particular group of such marriages: those between European-

born members of ethnic minorities, and spouses from their parents or grandparents’

countries of origin.95 The suggestion has been that such marriages are not only

problematic for the integration of a migrant spouse who may not have had to meet the

language and skills requirements imposed on other types of migrant but also in terms

of impeding the integration of children from such marriages, and of the European-

born spouse.96 Recent analysis of Labour Force Survey data on British South Asian

women married to migrants, however, does not support the common assumption that

such transnational marriages reduce women’s labour market participation. Otherwise,

the evidence about the effect of marriage migration on UK family members is

limited.97

90. The suggestions of a relationship between intra-ethnic marriage migration and

integration problems can be connected to earlier discussions of ‘segmented

assimilation’ (Crul & Vermeulen 2006) and the idea that the family may act as a

barrier to integration, which suggest migrants may integrate into ethnic or kinship

networks rather than engage with wider society. They may also draw on notions of a

94 But see the publications of Migration Watch at: http://www.migrationwatchuk.com/Briefingpapers/other/transnational_marriage.asp (accessed 7th May 2011). 95 See Beck-Gernsheim, E. (2007), ‘Transnational Lives, Transnational Marriages: A Review of the Evidence from Migrant Communities in Europe’ Global Networks 7 (3) 271-8 for a review of transnational marriages involving migrant communities in Europe.96 This was a prominent government concern found by the authors of the INTEC reports discussed in Part 7 below; see also Jorgensen, M. B. (forthcoming), ‘Danish Regulations on Marriage Migration – Policy Understandings of Transnational Marriages’ in Charsley, K. Transnational Marriages (London: Routledge); on lower language proficiency among children of transnational Turkish marriages, see Becker, B. (2010), Equal Chances by the Third Generation? Cognitive and Language Skills of Second and Third Generation Children of Turkish Origin in Germany, Paper for EQUALSOC Conference 4-5 June 2010, Amsterdam. 97 Dale n.75 above.

40

tension between national and transnational engagement, but research suggests that

‘transnational involvement in general does not impede ‘immigrant integration’.98

91. Intermarriage with majority populations has long been used in the sociology of

immigration as an indicator of assimilation of ethnic minority populations. Patterns of

marriage are influenced by factors such as religion and cultural marriage

preferences.99 Integration may take place without assimilation and intra-ethnic

marriages are not necessarily a bar to integration.100 Spousal migrants to the UK are

involved in both inter- and intra-ethnic marriages.101 Esser’s review of second

language acquisition by migrants found evidence that migrants in inter-ethnic

marriages tend to have better second language skills than those in intra-ethnic

marriages.102 This is unsurprising given that spouses from the same ethnic background

will usually have an alternative common language and does not, on its own, suggest

that intra-ethnic marriages are problematic.

92. Little evidence exists on the language skills of spousal migrants to Britain. The

planned new Home Office survey of migrants may provide some information but does

not appear to be available yet.103 An Australian longitudinal survey of migrants does

provide a source of comparable information. Shortly after migration to Australia,

family-based visa recipients have lower English language proficiency than skills-

tested and economic migrants. Language skills improve with duration of residence,

and when other variables (such as education, age at migration, pre-migration cross-

98 Snel, E., Engbersen, G. and Leerkes. A. (2006), ‘Transnational Involvement and Social Integration’ Global Networks 6 (3) 285-308; Jayaweera & Choudhury n.82 above.99 Ballard n.67 above. 100 Price C. A. and Zubrzycki, J. (1962), ‘The Use of Inter-Marriage Statistics as an Index of Assimilation’ Population Studies 16 (1) 58-69.101 Cf Niedomysl, T. J., Osth, J. and van Ham, M. (2010), ‘The Globalisation of Marriage Fields: The Swedish Case’ Journal of Ethnic and Migration Studies 36(7) 1119-38 on the ‘globalisation of marriage fields’102 Esser. H. (2006), Migration, Language and Integration AKI Research Review 4. (Berlin: Wissenschaftszentrum Berlin für Sozialforschung (WZB)) available at: http://193.174.6.11/alt/aki/files/aki_research_review_4.pdf accessed 7th May 2011) at 35, cf. Khoo, S. E. (2003), ‘Marrying and Migrating to Australia: Asian spouses in Intra- and Inter-cultural Marriages’ in Asians on the Move: Spouses, Dependants and Households. Asian MetaCentre, Research Paper Series, No. 8 (Available online at: http:// www.populationasia.org/Publications/RP/AMCRP8.pdf accessed on 7th May 2011). 103 Home Office (2011), A Feasibility Study for a Survey of Migrants (available at: http://www.homeoffice.gov.uk/publications/science-research-statistics/research-statistics/immigration-asylum-research/occ92/occ92-technical-report?view=Binary accessed on 7th May 2011).

41

cultural contact and linguistic distance) are controlled for, differences in spoken

English between migrants entering on different visa categories had disappeared by 3.5

years after immigration.104 This research suggests that although spousal migrants may

start from a lower level of language skills (no language requirement is imposed on

spousal migrants to Australia), in-country language learning can remedy this situation

relatively quickly, at least in terms of spoken proficiency, and the main influence on

difference in such language skills is not the category of migration but other factors,

such as educational level.

93. A review of the literature on migrants’ second language acquisition suggests

language and education combine to influence migrants’ employment opportunities

and income. Good language skills by themselves, however, ‘are inconsequential if the

level of education is poor’.105 Data from Australia suggests that skilled migrants have

higher wages than family reunion migrants, although the differences decrease slightly

over time.106. A study of Asian-born migrants to Australia also found significant

differences in socio-economic characteristics between spousal and other migrants.

The latter tended to be older and better qualified, but also more likely to have taken

the lead in their migration decisions suggesting several mechanisms may help explain

these differences.107 Inter-ethnically married migrants also entered employment more

quickly after migration than their intra-ethnically married counterparts.108 Research on

inter-ethnically married Thai migrant women in Britain, however, has suggested

problems of isolation and cultural stereotyping suggestive of a more mixed picture of

integration when the issue is considered more broadly than simply with regard to

linguistic and economic domains.109

94. Empirical research on the post-migration integration trajectories of spousal against

other categories of immigrants in Britain is rare. One piece of British research 104 Chiswick, B., Lee,Y. and Miller P. (2006), ‘Immigrants’ Language Skills and Visa Category’ International Migration Review 40, 419-50.105 Esser n. 102 at 99.106 Davidoff, I. (2006), ‘Do Skilled Immigrants Perform Better than their Family Reunion Counterparts?’ Harvard University John F Kennedy School of Government Working Paper Series (available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=923009 accessed 7th May 2011)107 Khoo n.101 above.108 Ibid.109 Sims, J. M. (2008), Empowering Individuals & Creating Community – Thai Perspectives on Life in Britain (London: Runnymede Trust)..

42

compares the integration of family migrants with others, based on interviews with

Muslims in Newham, Birmingham and Bradford.110 This study is interesting in that it

looked at a range of indicators of integration spanning several domains (economic,

social, political and civic) and found a varied picture. Compared with economic

migrants, family migrants were more likely to be economically inactive, less likely to

speak English well and less likely to participate in community organisations, but they

were also less likely to report themselves to be struggling financially, interacted with

people from other ethnicities or religions in a higher average number of spaces, and

were more likely to vote in local and general elections. In terms of their transnational

engagements, they were more likely to remit money to family overseas than non-

family migrants, but less likely to be involved in businesses or own houses overseas

than economic migrants, and there was little difference between the groups in other

forms of transnational contact and travel. The author stresses that this study is limited

in scale, and points out that the non-family migrants had often migrated more

recently, and few had obtained settlement. It is thus possible that the security of

residence gained by family migrants compared to many other visa categories, may

contribute to enhanced political integration.

Conclusion to Part 6

95. Integration is a complex and multi-faceted process and it cannot be measured in a

single dimension. It is true that both labour market participation and language skills

are associated with integration but they are not the only or necessarily the best

measures. It would be wrong to privilege either of them as an indicator of or

requirement for integration particularly when migrants have not entered for

employment.

96. There is little evidence that marriage migrants are less well-integrated than other

migrants, particularly once integration is looked at holistically. It is unsurprising that

they may be less likely to be employed and their wages may be lower than migrants

who enter for work. However, they do not appear to consider themselves to be

struggling financially more than other types of migrant. While their language skills

may initially be lower than those of work migrants, such evidence as is available

110 Jayaweera n. 82 above.

43

suggest that they are able to catch up within a short period. While the acquisition of

language skills is important for marriage migrants who may, on average, start from a

lower base than that of work migrants who are selected for education and language

skills, the rest of this report has not shown that a pre-entry test will confer advantages

in this regard. This is borne out by the low failure rate of migrant spouses in the

settlement test.

97. Marriage migrants may score less well on some measures of integration because

they have not been selected for the types of qualifications, language, education and

skills that would directly influence some markers of integration such as work but this

problematic impression becomes less marked once integration is viewed more broadly

and the diversity of spousal migrants is acknowledged. It would surely be

unacceptable to confine British citizens’ or residents’ choice of spouse only to the

skilled or educated.

98. Migrants’ sense of belonging and equality is critical to integration. As Parts 2 and

3 of this report suggests, a pre-entry test will be experienced by some migrants as

discriminatory, exclusionary or a major obstacle to entry. This may well affect their

perception of the welcome they will receive once admitted and their subsequent

ability and willingness to integrate into British society. Thus, a pre-entry test has no

identified benefits in terms of integration and may prove to be counter-productive.

44

Part 7: Pre-entry testing in other European countries

99. The information in this part of the report is, unless stated otherwise, drawn from

the country reports written as part of the INTEC research project and were completed

in October to December 2010. The INTEC project was financed by the European

Integration Fund and is a comparative study of integration and naturalisation tests in

nine EU member states, including all those who currently have pre-entry tests. The

research involved analysis of the laws in each state, policy debates and the impact of

the tests. In each country, about 25 interviews were carried out with migrants,

teachers of integration and language courses, public officials and staff of immigrant

organisations or other NGOs.111 While the INTEC reports are the most current and

comprehensive source, there is also a small body of other commentary about pre-entry

tests.112

100. To date, four other European states have introduced some form of pre-entry

language testing for spouses: Netherlands, Germany, France and Denmark. Austria is

about to introduce a test.

Netherlands

101. The Dutch pre-entry test came into force in March 2006 and applies to all non-

EEA family migrants aged between 18 and 65 except those from Australia, Canada,

Japan, Monaco, New Zealand, South Korea, Switzerland, the Vatican and US. Later,

Surinamese nationals with at least primary education were also made exempt. The

main exemptions were justified on the grounds that these nationalities were already

treated differently within the immigration system, were already likely to possess a

good understanding of Dutch social relations, norms and values and, finally, that their

111 The reports are available at: http://www.ru.nl/law/cmr/projects/overview/intec/ (accessed 28th April 2011). The individual country reports were 112 For example, Block, L. (2010), Controlling Marriage to Control Migration:? Recent Developments in German Spousal Migration Policies Paper prepared for Workshop ‘New Family Migration Policies in Europe: A Gendered Perspective’ at the 15th International METROPOLIS Conference, The Hague, 4th-8th October 2010; Bonjour, S. (2010) ‘Between Integration Provision and Selection Mechanism: Party Politics, Judicial Constraints and the Making of French and Dutch Policies of Civic Integration Abroad’ European Journal of Migration and Law 12 299-318; Groenendijk, K. (2011) ‘Pre-departure Integration Strategies in the European Union: Integration or Immigration Policy?’ European Journal of Migration and Law 13 1-30; Human Rights Watch (2008) The Netherlands: Discrimination in the Name of Integration – Migrants’ Rights under the Integration Abroad Test available at: http://www.hrw.org/en/reports/2008/05/13/netherlands-discrimination-name-integration (accessed 24th April 2011).

45

need to integrate was less pressing than the national interest in retaining good

relations with these nations. There are also exemptions for the highly educated and

those educated in Dutch. Those who cannot take the test for medical reasons are also

exempt.

102. The test is of both language and knowledge of Dutch society and is conducted at

the Dutch Embassy or Consulate by computer through a phone link. When first

implemented, speaking and listening skills were tested at A1 minus (i.e. below A1).

During its parliamentary passage, an amendment to set the level at A1 was rejected as

likely to breach Article 8 ECHR as was another suggestion requiring literacy in the

applicant’s own language.113 Nonetheless, the language level required moved to A1 on

1st April 2011 and a reading and comprehension test was added.114 Thus, until very

recently the Dutch test operated at a lower level than the UK test. Each test attempt

costs €350 and the applicant can purchase a practice pack for €75 and a self-study

pack costing €110, a recent innovation made in response to the increased difficulty of

the test. 115 Previously, applicants were expected to prepare for the test independently.

Some private suppliers have started to provide preparatory courses but quality and

availability are uneven. These fees are on top of a visa application fee of €830 (plus a

fee for the residence permit after arrival).

102. The test is known as the ‘Civic Integration Examination Abroad’ but it seems

likely that integration was not the only motive. Four reasons were given by the

government for its introduction: enabling family migrants to cope better on arrival,

allowing them to make a conscious and informed choice about moving to the

Netherlands, making migrants and their families aware of their integration obligations

and, finally, acting as a selection mechanism to ensure that only those with sufficient

‘motivation and perseverance’ would be admitted. This latter justification was the

reason why, until very recently, preparatory materials were not made available.

113 Bonjour ibid at 315.114 See Announcement concerning the raising of the pass score of the civic integration examination abroad (http://www.netherlandsembassy.org.zm/en/news/pass-score-civic-integration.html accessed 24th April 2011).115 Information about fees is taken from http://www.naarnederland.nl/en/order (accessed 24th April 2011).

46

103. The Dutch government regards some types of family migration as deeply

problematic and its regulation was a major motivation for introducing the test. The

explanatory memorandum accompanying the legislation referred repeatedly to the low

educational levels of those of Turkish and Moroccan origin, their poor employment

prospects and the role of family migration in perpetuating their marginalisation. The

disruption of such migration was a specific aim and its likely reduction, although

regarded as a ‘side effect’, was anticipated.116 Bonjour quotes the Dutch government

as saying:

We must break out of the policy of (family) migration which time and again

causes integration to fall behind … an important part of these [family

migrants] has characteristics that are adverse to a good integration into Dutch

society. Most prominent among these – also in scale – is the group of marriage

migrants from Turkey and Morocco.117

At the time of implementation, a 25 to 30 per cent reduction in family migration was

anticipated and welcomed by the government.118 This expectation was largely

realised. There was a 20% global reduction in the year of its implementation. In the

two following years, global numbers dropped to 40% below pre-test levels primarily,

it is believed, due to the pre-entry test although other restrictive measures may also

have had an effect.

104. The test particularly affected Moroccan and Turkish marriage migrants whose

numbers fell by 44% and 39% respectively in the year of implementation. This may

have had a permanent effect on marriage patterns. In 2001, more than half of those of

Turkish or Moroccan origin living in the Netherlands contracted an overseas

marriage. By 2007, the figure had fallen to 20% and this seems to be connected to the

increasingly stringent admission criteria. While most migrants do pass the test, there

appears to be a minority who never pass it even after repeated attempts. The pass rate

is lower for older and less well-educated migrants and this may be the reason why the

numbers applying for family reunification (i.e. older couples who were already

married) dropped faster than that for family formation (newly married couples). The

INTEC researchers thought the test caused disproportionate hardship for some 116 Groenendijk n.112 above at 11-2.117 Bonjour n.112 above at 306.118 Ibid; Groenendijk n. 112 above at 12.

47

applicants. Those for whom the test would represent a disproportionate burden under

Article 8 ECHR should be exempted but there is no evidence that this happens.

105. Responding to an evaluation carried out one year after implementation of the

lower level test, the government was concerned that around a quarter of partners still

had low levels of education. Nonetheless, of those who took the test, around 90%

passed and it seems that this was critical to the test being made more difficult. The

initially high pass rate, combined with the reduced numbers and changing profile of

applicants, suggests a degree of deterrence and self-selection. Only migrants confident

of passing the test will take it and family migrants are, on average, better educated

now than before the test. In that way, the test has engineered the profile of family

migrants in a direction desired by the government.

106. While migrants interviewed for the INTEC project expressed their enthusiasm

for learning Dutch, preparing for the test caused considerable stress and tension and

sometimes had negative consequences. One interviewee abandoned employment to

prepare for the test and four out of ten interviewees were resentful of the practical

difficulties involved when they could learn Dutch more easily in-country. Because

test results are valid only for one year, interviewees were anxious in case other events

supervened (for example, loss of employment by the Dutch spouse), causing delay

and invalidation of the test result. The nature of the obstacle posed by the test has thus

to be seen in the context of the other criteria for entry.

107. Little improvement in the language skills of those who passed the test was

observed. Interviewees who had taken the test and entered the Netherlands considered

that, in practice, it conferred little practical benefit, a view reflected by language

teachers. An evaluation commissioned by the Dutch government also found that those

who took the test abroad seemed to have almost no linguistic advantage. Factors cited

included the low level and the delay between taking the test and starting tuition within

the Netherlands.

108. The Dutch test has been subject to criticism both domestically and

internationally. Two government advisory committees concluded that there was a risk

of a breach of Article 8 ECHR. Linguists consulted prior to implementation disputed

48

the effectiveness of the testing method.119 In 2008, Human Rights Watch published a

highly critical report finding that the test discriminated by nationality both directly

and indirectly and the European Commission against Racism and Intolerance

recommending monitoring its impact and reviewing the exemptions. In 2009, the

Commissioner for Human Rights of the Council of Europe also recommended review.

In 2010, the Committee on the Elimination of Racial Discrimination found that the

test discriminated on grounds of nationality. So far, the Dutch domestic courts have

not found that the test is incompatible with Dutch law but, on 31st March 2011, the

District Court of The Hague made a reference to the Court of Justice of the European

Union on the compatibility of the test with the Family Reunification Directive

2003/86 (by which the UK is not bound). Questions for the court include the

exemptions for nationals of some countries and the interests of minor children

(already resident in the Netherlands), which are pertinent also to international and

domestic obligations binding on the UK.120

Germany

109. Germany was the first European state to introduce pre-entry language testing to

control migration. In 1997, passing a German language test became a pre-condition

for the admission of ethnic Germans residing in Central and Eastern Europe

(Aussiedler) resulting in a significant decrease in the numbers of entrants. A similar

test was applied to similar effect in 2005 to Jewish migrants from Russia.121 In 2007,

passing a language test abroad was made a requirement for admission for family

reunification. The German test does not examine knowledge of society and the level

is A1 in listening, speaking, reading and writing. The cost of the course is partially

subsidised and costs between €100 and €800 depending on location. The test itself

costs between €40 and €120 with an average of about €50.122 Visa fees are also lower

than in the Netherlands.123 The German courts have held that the requirement to

speak basic German may be demonstrated in other ways, for example, by

conversation with a consular official. An unknown number of migrants appear to

119 Groenendijk n.112 above at 12.120 Email from Professor Kees Groenendijk dated 2nd April 2011 and circulated to Migration and Law Network.121 Groenendijk n. 112 above at 4.122 Ibid at 14.123 A family reunification visa costs €60 although there are other incidental costs (Email correspondence with Laura Block European University Institute).

49

enter Germany on a visitor’s visa, prepare for and pass the test in Germany although

it is unlikely that these are nationals for whom the test is most problematic.124 While

the test certificate does not expire, if it is more than one year old, the applicant may

be tested again as part of the visa process. Interviewees regarded this as permitting

arbitrary decision-making. The reason given is that acquired language ability may

rapidly be lost. As the INTEC report on Germany comments, this calls into question

the efficacy of pre-entry language requirements.

110. Goethe Institutes and other approved language institutes provide courses and

organise the test at 480 places in 108 countries.125 The Goethe Institute is the main

supplier with 149 Institutes and ten liaison offices in 91 countries, as well as test

centres in at least 104 countries (although it is likely that those living in rural areas

will still be some distance from a provider). Implementing the test required a re-

orientation of its services to a new customer base with particular needs. New staff

were trained and new course models, information and consultation services were

offered (for example, the website of the Goethe Institute is now in 18 languages and

phone hotlines were established in German, English and French within Germany and

in the respective national languages in Turkey and Thailand). In addition, two EU

projects (financed by the European Integration Fund, the Federal Office for Migration

and Refugees and the Goethe Institute) are dedicated to expanding consultation and

information services, improving language courses and language learning materials,

fraud prevention and expansion of the network. The Goethe Institute estimates that

between 80 and 200 teaching units (UE) of 45 minutes each are needed depending on

individual conditions i.e. between 60 and 150 hours. Its A1 courses usually run for

160 UE i.e. 120 hours and take place over 2 or more months depending on the

frequency of tuition.

111. The test applies to the spouses of German nationals and of third country

nationals who are long term residents in Germany. In the interests of ‘close economic

relations’, there are exemptions for the spouses (from any country) of the nationals of

USA, Australia, Israel, Japan, Canada, Korea, New Zealand, Andorra, San Marino,

Honduras, Brazil and El Salvador who are long term residents in Germany. In theory,

124 Email correspondence with Laura Block, European University Institute.125 Groenendijk n. 112 above at 14.

50

spouses who are themselves nationals of these countries married to German citizens

or to nationals of other countries are not exempt from the test but, anecdotally, there

seems to be some confusion about this and they are often described as exempt and

may not always be asked to take the test.126 In addition, the spouses of highly skilled

long term migrants and of refugees are exempt as are those who themselves have

academic qualifications equivalent to a degree or who exercise certain professions or

occupations. Also exempt are spouses over 65 and those with a physical or mental

disability or illness which means that they cannot command a language (although not

the illiterate).

112. Introduction of the pre-entry test was deeply contested but succeeded as part of a

political compromise within a coalition government. Reducing the number of family

migrants was less explicitly articulated than in the Netherlands although awareness

that such had been the effect of the previous language tests was part of the political

background.127 Block suggests that the measures, which apply more rigorously to the

spouses of German citizens than to those of some long-term residents, are linked to

the growing realisation that, following recent nationality reform, German citizenship

has become more ethnically diverse.128 The explanatory memorandum to the measure

stated that the language requirements are geared towards certain naturalised

immigrants and are justified on the grounds of integration, protection from forced

marriages and violations of human rights as well as the protection of the welfare state.

The INTEC report comments that the targeting of particular groups that this implies is

reflected in the system of exemptions by which certain nationalities and the highly

educated are not affected. In official discourse and public debate, protecting the

victims of forced marriage, usually framed as a human rights question, was cited as a

major consideration although there was no evidence that the measure would be

successful in this regard and those interviewed for the INTEC report could not see any

benefits for victims. The legality of the pre-entry test has been the subject of much

debate. So far, the German courts have found that the measure complies with the

German constitution, the Family Reunification Directive and Article 8 ECHR. The

German government is likely to follow the Dutch reference to the CJEU with interest.

126 Email correspondence with Laura Block, European University Institute.127 Groenendijk n.112 above at 14-5.128 Block n. 112 above at 15.

51

113. Numbers of spousal migrants were falling even before its introduction in 2007

although this was attributed to other factors such as the accession of new EU states.

Numbers from key countries of origin, Turkey, Kosovo, Russia and Thailand,

declined by between 35 to 42% after the test was introduced. Numbers for these

countries were increasing again by 2009 although they were not back to previous

levels. It seems that the test in Germany led not to fewer applicants, as in the

Netherlands, but to more failures. In 2008, the pass rate for the test was on average

59%, increasing to 64% in 2009, attributed by the INTEC researchers to improved

tuition. There is a marked difference in achievement between those who attend

courses organised by the Goethe Institute and those who attend elsewhere where

tuition may be of lower quality.

114. Those interviewed for the INTEC report made similar observations to those

made in the Netherlands: that the pre-entry test selects by education. While

knowledge of German society is not formally tested, materials draw on scenarios and

cultural patterns that may be unfamiliar to some. While many viewed tuition abroad

as having positive aspects, the difficulties involved in funding and undergoing the

course and taking the test caused enormous stress and anxiety for some, to the point of

relationship breakdown. Despite the stated aim of preventing forced marriage and

domestic abuse, the test was seen as reinforcing dependency by creating new burdens

although the government claimed that some teachers reported that those forced into

marriage deliberately failed the test. Teachers interviewed for the INTEC project

regarded the difficulties as disproportionate to the benefits, citing the low and variable

level of attainment that level A1 represents. As in the Netherlands, those who passed

the test seemed to have very few advantages over those who had not in terms of their

language competence after arrival.

France

115. While France has introduced pre-entry measures, they cannot be regarded as

constituting a pre-entry test as they do not require migrants to attain a particular level

of competence before entry. Rather they represent an obligation on migrants to

engage in the first steps of an integration process that will continue after entry. Since

2007, family migrants must undergo an evaluation of his/her knowledge of French

language and values in the country of origin. If the evaluation is successful, the visa is

52

issued. If not, the family member has to attend courses, free of charge, in the country

of origin. This deals with language knowledge (up to 180 hours although the

minimum is 40 hours) over not more than two months while a course of three hours

covers Republican values.129 A new evaluation is then carried out and, if successful,

the visa is issued and the applicant exempted from further instruction after entry. If

knowledge is still insufficient, the visa is still issued but the migrant must follow a

course in France.

116. The language level is currently assessed at A1.1 (below A1) in an oral and

written exam.130 There are exemptions for those below 16 and over 65 years old, those

who have completed at least three years of French or Francophone studies or one year

of higher education in France, where there are unreasonable financial burdens or in

cases of disturbances, war or natural disaster. Testing and teaching is organised either

by the Office Français de l’Immigration et de l’Intégration (French Office for

Immigration and Integration) or private organisations such as Alliance Française.131

117. Groenendijk and Bonjour report that the original intention was to follow the

Dutch model but this was considered likely to breach French constitutional rights to a

family life as well as the Family Reunification Directive. Bonjour observes that this

constitutional right is not unconditional but is arguably stronger than the right under

Article 8 ECHR.132 The official purpose of the test, as repeatedly stated, was

improving integration but some comments have suggested a preoccupation with

managing family migration flows and this seems possible given that one aim of the

measure was ‘to reward the efforts of those who really wish to integrate.’133 As

elsewhere, there was a perception of an imbalance between immigration choisie

(selective immigration) and immigration subie (passive immigration), which includes

family migration.134

118. In general, implementation of the pre-entry measures was little discussed

compared to other European states and was partially overshadowed by controversy

129 Bonjour n.112 above at 303; Groenendijk n.112 above at 16.130 Groenendijk ibid.131 Ibid.132 Ibid at 15; Bonjour n.112 above at 313-4.133 Bonjour ibid at 305.134 Groenendijk n.112 above at 15.

53

over DNA testing in family reunification claims. There has been little official

evaluation although some academic literature has considered its impact and this is

reported in the INTEC study. One survey found that the test constitutes a measure to

select migrants and extend administrative control over them. There are practical

difficulties in attending the course, it represents a financial burden and some people

find the course difficult to follow. It also represents a cost to the state and there is

concern that budgets for in-country integration programmes may suffer in

consequence. It was reported to Parliament that visa applications for family

reunification in the first part of 2009 had decreased by more than 26% in comparison

with the same period in the previous year. This was attributed to a combination of

measures including the pre-entry requirements.

Denmark

119. Denmark has a reputation for its restrictive family reunification policy but,

despite political will, a full pre-entry language-testing regime has not been

established. Legislation based on the Dutch model was passed in 2007 and was to be

applied to third country family members and ministers of religion. However, a

working group tasked with an advance analysis of implementation concluded that it

would be very costly to establish a testing system abroad as there would be relatively

few applicants from many different countries and it was agreed that the test should be

taken in Denmark once the other pre-entry conditions had been met. New legislation

was passed to this effect in April 2010 and a post-entry language test came into force

on 15 November 2010.

120. The new test applies to all non-EU/EEA nationals applying for reunification with

a spouse or partner although those seeking to join an economically active Turkish

citizen living in Denmark are exempt (to avoid non-compliance with EU Court of

Justice judgments on the treatment by the Netherlands of Turkish nationals).135 The

test does not apply to spouses of refugees or in cases of serious illness or handicap

and the test should not be applied if it would cause a breach of ECHR. Also exempt

are the spouses of those granted entry for work or study or if the spouse can

demonstrate a sound knowledge of Danish and Denmark. There are no exemptions for

135 Groenedijk ibid at 18 observes out that the Netherlands have so far failed to acknowledge the implications of these cases.

54

those from developed countries as in the Dutch model, although this was originally

envisaged.136

121. The test must be taken in Denmark after the applicant has met all the other

requirements for family reunification. A temporary visa is granted which must be

replaced within 28 days by leave to remain for three months to take the test. This time

frame is, in reality, shorter because of the time needed to get the test results. The test

may be retaken within the three-month period upon payment of a new test fee. If an

applicant has not passed the test within the three-month time limit, family

reunification will be refused and a date for departure will be fixed.

122. The immigration test is an oral test of Danish language and knowledge of

society taking about 30 minutes. The language test is set at A1 minus but passing the

knowledge test requires, in practice, a higher level. No preparatory materials for the

language test are offered although there is a package available for the knowledge test,

including a DVD. The test is administered through a computer based test system,

which plays the questions and records the answers on a sound track. Taking the test

costs the equivalent of about €300 but its validity does not expire.137 The preparatory

pack costs about €7 plus €20 package and postage if sent abroad.

123. The introduction of the immigration test received relatively little attention in the

Danish media. Parliamentary debate assumed that such a test had been successfully

implemented in the Netherlands. During the pre-legislative consultation, several

NGOs and other bodies criticised the test as being exclusionary, particularly given the

absence of courses and the high fee. Political opposition focused less on the principle

of the test and more on aspects of its implementation, such as the short time limit. The

government stressed that the purpose of the test is not to limit the number of family

reunifications or to keep foreigners out of Denmark and no marked decrease in the

number of applications is expected. However, there does seem to be a didactic and

selective aspect. The Minister for Integration suggested that some migrants might

change their minds about staying in Denmark once they become acquainted with

Danish social norms and the test also sends a signal that integration requires

136 Ibid at 17.137 Ibid at 18.

55

individual engagement. For that reason, the idea of offering preparatory language

courses was rejected. There is not yet any information about the effects of the test but

an evaluation is planned after one year. Even so, that has not prevented recent

political agreement that the standard of the test should, at an unspecified future date,

be raised to A2, a dramatic increase that has been calculated to require 600 hours of

tuition.138

Austria139

124. Finally and subject to parliamentary approval, Austria is due to implement a pre-

entry language test for third country family migrants in July 2011. The law was

adopted at the end of April by the Austrian Parliament.140 The minimum standard will

be A1 and, while the legislation is unclear, it looks likely that it will not be confined

to oral skills. The government is not providing materials or financial support for

courses. Tests must be taken at a test centre approved by the Ministry of the Interior

(which may include the Goethe Institutes used for the German test) but the authorities

may reject a diploma obtained by an institution if they think that the language skills

do not comply with the legally required level. The test result will be valid for one

year which may cause particular problems as Austria operates a quota system in

family migration so the time when the application will be considered cannot be

assured. There are exemptions for minors, those who can already demonstrate

knowledge of German to a higher level, the spouses of skilled migrants and those

whose physical or mental health is certified by a doctor to prevent them learning a

language. There is no exemption for illiteracy and, in consequence of the test, federal

funding for literacy classes under the Integration Agreement will no longer be

available.

125. The test has been the subject of much contention. It is linked to a wider

reorientation of immigration policy towards skilled migrants as well as the same

concerns as elsewhere in Europe about poorly integrated migrant groups and family

138 ‘Stricter Language Requirement for Family Reunion’ Migration News Sheet May 2011 at 5-6; ‘Tougher Immigration language Test Proposed’ Copenhagen Post Online 26 April 2011 available at http://www.cphpost.dk/news/making-the-cut/200-making-the-cut/51490-tougher-immigration-language-test-proposed.html (accessed 17 May 2011).139 The information on Austria is based on email correspondence with Christina Hollomey, Researcher at the International Centre for Migration Policy Development, Vienna. 140 See http://www.parlament.gv.at/PAKT/VHG/XXIV/I/I_01078/index.shtml (accessed 6th May 2011).

56

norms perceived as archaic and coercive. Family migrants are considered the most

problematic group in relation to integration, as they are generally associated with

unskilled, mostly female, immigrants from rural areas and/or Muslim countries. The

government has legitimised the test by saying that German skills are a necessary

precondition for participation in the labour market and social life particularly for some

female family migrants and the test has even been presented as ‘emancipatory’.

Experts and NGOs have criticized the focus on language as sole precondition for

integration, while other integration-relevant areas and acknowledged integration

indicators such as residence security or discrimination are not addressed. Although the

importance of language is generally acknowledged, they consider the sanction-based

approach as ineffective with regard to integration and call for positive incentives. The

pre-entry test has also been criticised as discriminatory by nationality, gender and

social background. It is anticipated that the lack of infrastructure and political

instability in the countries of origin and of financial support for the courses, means

that the pre-entry test will prevent family reunification and may violate the right to

respect for family life.

Conclusion to Part 7

126. Three European states have so far introduced pre-entry language tests while

Denmark has implemented a test taken shortly after entry and a test in Austria is about

to be introduced. There are significant differences between all the tests:

o Level and nature of the test: Until 1st April 2011, the Dutch test was set at

A1 minus speaking and listening. The level has now been raised to A1 and a

reading and comprehension test added. Germany requires A1 in speaking,

listening, reading and writing as will Austria. France requires A1.1 (below

A1) oral and written and Denmark A1 minus oral (with a recent proposal to

raise it to A2). The Dutch, French and Danish tests also assess knowledge of

the host society (which may require some more advanced language skills in

practice) while Germany and Austria test language only.

o Support for applicants and cost: Germany has provided considerable

support for those taking the test abroad with specially adapted materials and

subsidised language courses as well as explanatory web materials. The cost of

the course is not negligible though. The French have also provided special

57

courses abroad, which are free of charge. Both the Dutch and the Danish

regimes rely far more on the ability of individuals to obtain their own

language tuition, seeing this as one way to test commitment, although the

Dutch have now produced learning materials. The costs of the Dutch and

Danish tests are high and the Dutch study materials are also not cheap.

However, the Dutch test is taken at the Embassy and the Danish test is taken

in-country so the problems of access to test centres identified in this report do

not apply. The costs of the course and the test must be seen in the context of

the visa application fee, which is highly variable. A family visa for the

Netherlands costs €830 while one for Germany costs €60. There may also be

more fees to pay as the migrant progresses through the immigration system. It

is also necessary for Danish and Dutch applicants to retake the test if their

application is delayed beyond one year.

o Effect of failing the test: In the Netherlands and Germany, a visa for

admission as a spouse will not be issued until after the test has been passed. In

Denmark, the test must be passed within about three months of entry or

removal will follow. In France, failing the test abroad results in compulsory

attendance at courses after entry.

o Rationale for the test: Anxiety about the continued entry of poorly educated

migrants, particularly those from certain (often Muslim) countries, has been a

common feature in all countries and this has been stated with varying degrees

of specificity. This is linked to concerns about the reproduction through

marriage of forms of family life that perpetuate the marginalisation of

affected communities and controversial social mores.141 In that context, a pre-

entry test is one means to reduce the number of unsuitable marriage migrants.

In the Netherlands, reducing the number of family migrants has been a more

or less explicit aim, as it has been to some extent in France although, in both

countries, the primary aim was claimed to be the integration and education of

family migrants. The debate in Germany focused primarily on the assumed

vulnerability of female migrants forced into marriage. In Austria and France,

the emphasis has been on the need to restrict unskilled migration and, in

Austria, protection for vulnerable women. The exemptions for nationals of

some developed nations, the costs of taking the test and the lack of assistance 141 See, for example, Bonjour n.112 above at 301-2.

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to applicants in the Netherlands and, to some extent, in Denmark and

Germany support the hypothesis that a reduction in family migration and a

changed profile of those who do enter are desired consequences of the policy.

o Effect of the test: There is no evidence so far available from Austria and

Denmark. In the Netherlands, France and Germany, the consequence has been

a significant reduction in the number of family migrants who enter and certain

nationalities are more affected than others. The Dutch test has been the most

closely examined and the results there suggest that the profile of migrants has

moved in favour of the more educated and that marriage patterns within some

minority communities are also changing with more marriages undertaken in-

country.

o Legal challenges to the test: The pre-entry test has not yet been the subject

of a successful challenge in the domestic or European courts. However, there

have been some modifications of policy due to fear of successful challenges.

The Dutch, for example, were slow to implement the test at level A1 because

of fears of incompatibility with Article 8 ECHR. In all countries, the

exemptions for age and disability are presumably designed to pre-empt

Article 8 challenges. While there are sometime specific exemptions where a

breach of Article 8 would otherwise occur, there is no evidence that these are

applied. In the Netherlands, in particular, there has been strong international

criticism that the test discriminates by nationality, both directly and indirectly,

with adverse findings by international bodies. The Netherlands is also the

subject of the first challenge under European law with the CJEU reference on

the Family Reunion Directive.

127. The UK test remains more rigorous than the French and Danish tests (as

currently constituted) because entry is impossible without first passing the test and the

standard required is higher. Until very recently, the Dutch test operated at a lower

level to the UK test and was raised only on 1st April 2011. However, it is taken at the

Embassy via telephone and preparatory materials are now available. The German test

appears more rigorous than the UK test but is somewhat mitigated by the structure of

widespread, subsidised and appropriate tuition and testing. It is also possible to

demonstrate competence through interview at the Embassy.

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128. In all cases where the test has been implemented, it has led to reductions in the

numbers of successful applications and, where this information is available, it is clear

that this has been particularly marked for some nationalities and for certain types of

migrant.

Part 8: Concluding Discussion

129. The proposal for a pre-entry test in the UK originated in discussions about

immigration control. Arguments about integration were made only later. Its

accelerated implementation seems to be closely associated with a political

commitment to reduce immigration. The evidence that is available suggests that the

major effect of the test is not to promote the integration of migrant spouses who come

here but to delay or prevent the entry of some of those spouses, in particular those

from certain parts of the world. This will have a disproportionate effect on some

ethnic minority communities based in the UK. In other words, the test is primarily a

selection measure not an integration measure and one that discriminates by nationality

and ethnicity.

130. In its promotion of the pre-entry test, the government seems to have overstated

both the integration deficits of migrant spouses and the integration benefits of the pre-

entry test while understating the degree to which the pre-entry test creates an obstacle

to entry. In none of these areas has there been a detailed evaluation and such evidence

as has been cited is used selectively.

131. Despite being first articulated in a control context, the principal argument in

favour of the pre-entry test became that of improved integration. As Part 6 of the

report demonstrates, integration is a complex and multi-faceted process and it cannot

be measured in a single dimension. There is little evidence that marriage migrants, as

a category, are less well-integrated than other migrants, particularly once integration

is looked at holistically.

132. Both labour market participation and language skills are associated with

integration but are only one part of the picture despite being heavily emphasised by

the government. While there is some evidence that English language skills increase

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earnings, there is no evidence that the pre-entry test will raise migrants’ wages more

effectively than post-entry learning. It is also argued that the pre-entry test will

address problems of scholastic under-achievement of children where English is not

the first language at home. The evidentiary support is slight and the specific benefits

of a pre-entry test are again not established. Some benefits for community

participation are also claimed but, once again, the research cited paints a much more

complex picture.

133. The government suggested migrant spouses face problems in taking the

settlement test but there seems to be little concrete evidence of this. In fact, it appears

that very few spousal migrants fail to pass the test before the expiry of their two year

probationary period and therefore need further temporary leave. Nor is there any

evidence provided to support the suggestion that migrant spouses are a drain on public

resources.

134. All the government’s arguments assume that passing the pre-entry test will

accelerate the post-entry process by which the supposed language-based deficits

diminish and advantages accrue. The government has not cited a single piece of

evidence to demonstrate that this will happen. Part 2 of the report, which examines the

pre-entry test from a Second Language Acquisition perspective, finds the reverse: that

pre-entry test offers little or no benefit from the point of view of language learning, an

argument supported by the INTEC findings. Learning English to A1 Speaking and

Listening is unlikely to make any significant difference to a person's ability to

function in the UK. Those who start formal learning with level A1 will be placed in

beginners’ classes and will soon lose any advantage. Most of those living in the UK

learn to speak English within a relatively short period anyway, and this is anyway

required by the settlement test. Thus, even if the advantages of language acquisition

are as claimed by the government, imposing a pre-entry test does not magnify these.

Meanwhile, as the discussion in this report on integration shows, it has the potential to

do damage. Integration is a two-way process. Migrants’ sense of belonging and

equality, critical to integration, is likely to be compromised by measures perceived to

be discriminatory and exclusionary. The negative effects of the pre-entry test must

therefore also be brought into the equation.

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135. These disadvantages seem to have been either overlooked or minimised by the

government. The most obvious issue is that of accessing suitable tuition and test

providers. That this is a significant issue was acknowledged in the original plan to

implement the test only after a sufficient supply of suitable tuition and testing centres

had been established. However, implementation was brought forward without

explaining how this had been achieved and the supply of suitable tuition and test

centres is a major issue.

136. Practical difficulties in accessing approved test centres were discussed in Part 3

of the report. This established that only one of the five approved test centres offers a

test that does not require reading and/or writing skills to pass or rely on these skills to

take the speaking and listening test. This test provider did not have test facilities in

three of the four exemplar countries and its presence in the fourth country was not

established. In reality, many applicants will need to acquire skills in reading and

possibly writing to take the test or they will have to travel to another country.

137. Tests often require understanding of socio-cultural norms or a business

environment. Accessing information about the test requires literacy in English and

sophisticated internet searching skills. Taking the test often requires computer and

internet skills. Obtaining tuition and travelling to take the test involve disruption and

costs that may be very substantial in local terms. Some groups, such as women, are

likely to find these hurdles more substantial because of their relative disadvantage or

cultural norms. Given the need to navigate multiple hurdles, those who are poorly

educated or illiterate are likely to find obtaining tuition and taking the test very

difficult or even impossible given that, as demonstrated in this report, most speaking

and listening tests also require literacy skills.

138. As part 2 of the report shows, good tuition is critical to second language learning

abroad but is unevenly distributed throughout the world. Those living in poor

countries will find it much more difficult to access the right kind of teaching. Personal

characteristics such as age, economic position and prior education and cultural and

emotional obstacles also play a role in inhibiting learning and the effect of these will

be magnified if teaching is poor and difficult to access. Learning is likely to take

much longer than the 40-50 hours claimed by the government with 70 to 90 hours or

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more being required in many cases (as the 60 to 150 hours tuition provided in

Germany demonstrates). This is particularly so when it is appreciated that many

applicants will not, in fact, be able to access a test that requires only speaking and

listening capabilities.

139. All these difficulties are likely to be reduced if learning can take place within the

UK and failing to allow this severely disadvantages migrants from poor countries.

Any other solution would require a significant amount of planning and investment of

resources (see, for example, the discussion in Part 7 on Germany). Part 2 of this report

warns against allowing the proliferation of tuition and/or test centres which may, if

unregulated, be of poor quality and exploit migrants. The entire question of ensuring

adequate overseas tuition and testing facilities is one that requires much more careful

consideration.

140. The exemptions from the test, discussed in Part 4, do not adequately address the

problems and deficiencies identified. In particular, applicants must take the test even

if they are poor or illiterate and are not exempt if there is a single test provider in their

country even if, as established here, testing is only available at a higher level or they

live thousands of miles from the test centre. It seems that those who might qualify for

the medical or humanitarian exemptions must make the application and pay the

substantial fee without knowing if their request for an exemption will be accepted.

Educational exemptions are limited to those having an academic degree taught in

English.

141. There is also a list of countries which are exempt because they are ‘majority

English speaking’ and this is problematic. It includes Canada, a bilingual nation

where a substantial proportion of the population do not have English as a first

language but excludes countries such as Nigeria where English is an official language

and the medium for all secondary and almost all primary education. The exempt list

includes countries whose pass rates in the settlement test are lower than those of

countries that are not exempt.

142. Nor does the pre-entry test apply to significant groups of migrants who may

nonetheless enter the UK, work and settle. The contrast with the position of EEA

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nationals and their spouses is particularly marked. EEA nationals exercising free

movement rights in the UK may bring their spouse to the UK without any pre-entry

language requirement even though their integration needs are presumably similar. UK

nationals with the ability to do so may also avoid the test by exercising their right of

free movement elsewhere in the EEA. As well as EEA migrants and their non-EEA

spouses, the rule does not apply to the spouses of PBS migrants and to some other

smaller groups. The outcome is that the spouses of UK citizens and long-term

residents may be separated by the rule while the spouses of EEA citizens and new

migrants may enter and live with their spouse while they learn English.

143. Four other European countries have introduced pre-entry testing and Austria

intends to do so shortly. However, there are significant differences between the test as

implemented in each country and the UK pre-entry test:

Netherlands: Until 1st April 2011, the test was at A1 minus speaking and

listening. The test has been made more difficult but course materials have now

been provided. The test is taken at the Embassy or Consulate where the visa

application is made.

Germany: The test is A1 in reading, writing, listening and speaking. An

extensive network of specialised and subsidised courses and testing centres

have been organised through the Goethe Institute.

France: The test is at level A1.1 (below A1) oral and written but failure to

pass the test does not delay entry for more than a short period while a free

course is taken. If that is still insufficient, the visa is issued but the applicant

must attend a course after arrival.

Denmark: The test is currently A1 minus oral (although it may be raised to

A2) and must be taken and passed within three months of arrival in Denmark.

145. It cannot therefore be said that a test that operates in the same way as the UK

pre-entry test has yet been successfully implemented elsewhere in Europe. In each

case, there are differences in the level required, the delivery of tuition, the

administration of the test and/or the consequences of failure.

146. The discourse adopted in these other European states has coalesced around

concern at continued family migration within certain ethnic communities. Such

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information as is available suggests that the numbers of family migrants entering from

certain countries dropped significantly after the test and the profile of those migrants

who do enter has changed, becoming, on average, more highly educated. This seems

to be a not undesired outcome.

147. Given the lack of persuasive arguments in favour of the UK pre-entry test as an

aid to integration and the control context in which it first arose and was subsequently

expedited, a similar outcome in the UK may have been anticipated. Setting the test at

A1, the lack of provision for learning and testing particularly at the prescribed level,

the added costs and hurdles that passing the test will impose and the narrow

exemptions are all likely to cause a reduction in numbers.142

148. Whether or not reducing numbers of migrants was the original purpose of the

test, the likelihood of this happening did not cause concern. However, it is not only

about reducing migration but about changing its character. In the UK, as elsewhere,

there is a perception that some spousal migrants are unsuitable candidates for

admission, a point alluded to by Katharine Charsley in Part 6 and which I have

explored in my own work.143 Those who fail the test may be perceived as being

amongst those who have least to offer the UK and their exclusion is therefore not

unwelcome. Prior to the comment quoted in para. 15 above about the accelerated

introduction of the test, the Minister for Immigration, Damian Green said: ‘We need

to solve two problems simultaneously. We need not just to cut the numbers, but to

make sure we gain maximum benefits from those in the new smaller pool of

immigrants.’144

149. Adopting such an instrumental approach to family migration through conditions

such as the pre-entry test is highly problematic. Firstly, the correlation between the

requirement to pass the pre-entry test and the qualities that make a valuable resident

or citizen has not been established. Secondly, the consequence of failing the test is

142 When considering costs, it should be borne in mind that the entire migration process is now so expensive as to constitute a hurdle in its own right. The fee for an initial visa of £972 for the main applicant and £486 for each accompanying child if the application is made by post (or £1,350 and £675 if made in person). Further substantial fees have to be paid at each stage of progression. This compares to a fee of €60 for the initial visa in Germany.143 Wray, H. (2009), 'Moulding the Migrant Family' Legal Studies 29(4) 592-618.144 http://www.homeoffice.gov.uk/media-centre/speeches/Damian-Green-real-immigration (accessed 7th May 2011).

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exclusion with effects on the family lives of the married couple involved, of which

one member is either a UK citizen or resident. Thirdly, the hurdles that make the test

difficult to pass are largely connected to characteristics that are beyond people’s

capacity to change, such as educational level, financial status and access to suitable

tuition and test centres. These characteristics are closely associated with national

origin as this report has shown and the test discriminates indirectly on nationality

grounds.145

150. Moreover, a reorientation of the conditions of entry as a spouse towards more

instrumental criteria needs to be openly acknowledged and debated. Professor Kees

Groenendijk said of a Dutch proposal to impose minimum educational criteria on

spouses:

These attempts to place employment-stream requirements on family migration

deserve a full public debate, if only because the proposed educational criteria

would exclude the less well-educated segment of our societies from the right

to live with the spouse of his or her choice. This issue should not be hidden

behind the screen of integration policies.146

151. I agree with Professor Groenendijk’s general argument. If, as seems likely, the

pre-entry test will have the effect of preventing migrants with certain characteristics

from coming to the UK as spouses, with consequences for the married lives of some

sections of British society, such a development, and its implications, needs to be the

object of full scrutiny and not rationalised by claims to be improving integration.

Conclusion

152. There is little to suggest that the pre-entry test functions as an effective tool of

integration rather than as a selection mechanism (which is the role it has fulfilled

elsewhere in Europe). The practical issues of its implementation do not seem to have

been properly addressed with the result that it is impossible for some migrants to take

only a speaking and listening test in their own country. Finding suitable tuition and a

test centre, paying the costs and passing the test will be a major if not insuperable 145 Such discriminatory effects may also be observed in the application of less controversial criteria for entry such as those for maintenance and accommodation. However, these criteria are directly connected to the objectives of protecting the public purse and preventing the development of an impoverished migrant underclass and the UK spouse has a greater capacity to influence the outcome. 146 Groenendijk n. 112 above at 29-30.

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hurdle for some, postponing, possibly indefinitely, family life in the UK. There will

thus be a substantial interference in the family life of some individuals. Meanwhile,

claims made for the benefits of the pre-entry test have not been substantiated.

153. The effects of the pre-entry test will apply differentially according to nationality

and national origin. The test discriminates directly by nationality because of the

exemptions for the nationals of some countries, which do not seem to be fully

justified. It discriminates indirectly because the difficulties of passing the test will be

much greater for a more substantial number of nationals of some countries due to the

conditions in that country and the inadequate supply of appropriate tuition and test

providers. It also discriminates indirectly against certain national and ethnic groups in

the UK because of their greater participation in intra-ethnic international marriages.

Made this 19th day of May 2011

..............................................

Dr Helena Wray

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