Family Reunification Requirements: A Barrier or Facilitator to Integration? United Kingdom Country Report

Transcription

1 Family Reunification Requirements: A Barrier or Facilitator to Integration? United Kingdom Country Report Authors: Eleanor Sibley, Emma Fenelon and Nuala Mole

2 This project is funded by DG Home Affairs, Directorate B and led by the Immigrant Council of Ireland. The AIRE Centre is a specialist charity whose mission is to promote awareness of European law rights and assist marginalised individuals and those in vulnerable circumstances to assert those rights. For more information about the work of the AIRE Centre please visit For more information about the contents of this report please contact efenelon@airecentre.org or info@airecentre.org

3 CONTENTS CHAPTER Introduction Research methodology Sample and recruitment for qualitative research Participants... 6 CHAPTER 2: LEGISLATION AND POLICIES ON FAMILY REUNIFICATION Third Country Nationals Family Reunification under the family migration route Family Reunification for TCN PBS Migrant Sponsors Turkish national sponsors under the Ankara Agreement Refugees and Holders of Subsidiary Protection Union Citizens Nationals of the Member State Conclusion CHAPTER 3: POLICY DEVELOPMENTS AND POLITICAL DEBATE Overview of immigration Policy developments since Income requirements Housing requirements The government s definition of integration CHAPTER 4: ADMINISTRATION Administrative practices for implementing family reunification legislation in the UK The Secretary of State for the Home Department The UKBA and Immigration Officers Entry Clearance Officers Marriage registrars Police Airline providers and other carriers Procedure for applying for leave to enter or remain in the UK TCN family members of settled TCNs and UK nationals TCN family members of Union citizens in the UK Judicial System and Legal Aid Judicial System Legal Aid Legal Advice Conclusion CHAPTER 5: CASE LAW Third Country National Sponsors Case Law UK Compliance with EU/ECHR obligations European Union Citizen Sponsors Case Law UK Compliance with EU/ECtHR obligations UK Nationals Case Law

4 5.3.2 UK Compliance with EU/ECtHR obligations Conclusion CHAPTER 6: IMPACT OF POLICIES ON FAMILY REUNIFICATION TCN Family Members of TCN sponsors Quantitative analysis Qualitative analysis Union Citizens Quantitative analysis Qualitative analysis UK Nationals Quantitative analysis Qualitative analysis CHAPTER 7: IMPACT OF POLICIES ON INTEGRATION Quantitative analysis Qualitative analysis Impact on Employment Impact on Education Impact on language skills Impact on social inclusion Link between family reunification and integration Conclusions CHAPTER 8: CONCLUSIONS Relationship between policy developments, family reunification and actual integration Comparison of the (development of) conditions for family reunification across categories Comparison of numbers of family migrants admitted to the UK across categories of migrant. 80 BIBLIOGRAPHY

5 CHAPTER Introduction This report evaluates the impact of family reunification policies and legislation in the United Kingdom on the ability of third country national (TCN) migrants to integrate into the UK. It forms part of a wider study, funded by the European Commission INTI fund, which compares the impact of family reunification legislation across seven member states. 1 This is an important area for research given the fast-paced development of family reunification policies in the UK and the lack of research into their impact. 2 This study considers three separate categories of TCN family migrant, each distinguished by the status of Sponsor: those sponsored by (i) TCNs, (ii) Union Citizens, 3 and (iii) UK nationals. 4 The term family reunification includes four separate concepts: family reunion (reforming in the host state a family previously existing overseas); family formation (establishing a new family unit in the UK); family retention (protecting members of an existing family unit from expulsion) and family regularisation (regularising in the UK the status of an existing family unit). Given the wide range of requirements for family reunification across the countries participating in this study, four main types of requirement were selected as focus areas: accommodation, income, age and integration 5 requirements. Similarly, given the difficulties in finding a non-controversial definition of integration on the one hand and the need to draw comparisons across countries on the other, we have focused on four areas identified as essential to integration by the European Commission. These are employment, education, social inclusion and language skills. In addition, we consider the impact of family reunification policies on family reunification, which is considered important for integration. 1.2 Research methodology This study used a mixed method approach. Data was drawn from four main sources: first, a review of existing literature (qualitative and quantitative studies that have evaluated the requirements for family migration on integration of TCNs); second, legal research; third, official immigration statistics published by the Home Office; fourth, primary qualitative research with (a) individuals who are subject to family reunification legislation and policies (hereafter individuals ), (b) representatives of NGOs that work with such individuals (hereafter NGO representatives ), and (c) policy makers who are responsible for developing/implementing family reunification policies (hereafter policy makers ). 1 Participating states are: Austria, Bulgaria, Germany, Ireland, The Netherlands, Portugal, and the United Kingdom. 2 Charsley, Van Hear, Benson and Storer-Church Marriage migration in the UK, 4 International Migration Review, 46 (2012) p The term Union Citizen refers to all EEA nationals except for British Citizens. 4 These categories reflect the influence of the type of Sponsor on the rights of admitted family members. 55 Integration requirements are defined as those that purport to aid the integration of TCN family members into their host country. 4

6 Literature and statistical data were identified through a systematic search of academic databases (ASSIA and SocIndex), online search engines (Google), suggestions from key academics working in the field of family migration, footnote and bibliography searches, and visiting relevant websites (Home Office, UK Border Agency, ONS, COMPAS and Migration Observatory). Qualitative research was conducted using a mixture of focus groups and individual interviews. Semi-structured discussion guides, developed jointly by project partners, were used to ensure consistency between interviews and across countries participating in the research. To allow for a good geographic spread of participants, some individual interviews were conducted by telephone. Individuals were asked about motivations for family reunification, views on the substantive criteria to be fulfilled and the application process, as well as the impact of the application process on their family and integration. NGO participants were asked about their views on the link between family reunification and integration, the rationale for, and impact of, requirements for family reunification and the factors that they considered to be important to integration. Policy makers were asked about the rationale for family reunification policies, the evidence on which they were based and the evidence of their effectiveness. Interviews and focus groups were recorded where possible and, where this was not possible, detailed notes were taken. Transcripts and notes were analysed using thematic analysis and findings from the literature review and primary research were synthesised using thematic synthesis. Themes were discussed and agreed between two researchers. 1.3 Sample and recruitment for qualitative research (a) Individuals Project partners agreed on a sample size of 20 for research with individuals (one focus group with 10 participants and 10 individual interviews). The sample was designed to offer an insight into as broad a range of experiences as possible, rather than to be representative of the population of family migrants and sponsors in the UK. On this basis, project partners agreed that individuals should be drawn from all three categories of TCN migrant, and that a mixture of sponsors and applicants and different family member types (e.g. spouse, parent, child) should be recruited. The AIRE Centre aimed to recruit individuals from a range of nationalities and to talk to families with a range of sponsor types (e.g. settled TCNs, refugees, those with humanitarian protection, 6 people on temporary visas, British nationals and naturalised British Citizens. Further, the AIRE Centre aimed to recruit participants from a range of geographic areas and socio-economic groups. To achieve this sample, the AIRE Centre adopted a purposive approach and designed a recruitment questionnaire, with flexible quotas to screen volunteers. Participants were recruited through a mixture of direct invitations, adverts and snowball sampling. 7 Subject to screening, participants self-selected for participation in the research. Both snowball sampling and self-selection carry a risk of sample bias: individuals identified through snowball sampling are limited to those in referrers 6 Due to difficulties in recruiting refugees and those with humanitarian protection, we explored the experiences of these groups through talking to NGO representatives who worked with them directly. 7 The snowball technique relies on referrals from initial contacts ( gate-keepers ) to supply additional contacts for participation in research. 5

7 networks. Self-selection carries the risk that only those who are better English speakers, better educated, more interested in the topic, or better integrated into society will participate. Screening, a wide distribution of invitations to participate, and avoiding reliance on any one snowballing network were used to mitigate these risks. Due to problems in recruiting individuals for the focus group, the AIRE Centre conducted additional individual interviews. (b) NGO representatives The agreed sample size for NGO representatives was six. The AIRE Centre sought to speak to a range of NGO representatives with experience of working with individuals from all of the above groups. Potential NGOs and individual representatives were identified through a web search and discussion with key practitioners in the field of family reunification. Letters and s of invitation were sent to a wide range of NGO organisations. Representatives then self-selected for participation in the research, but were screened to ensure that different types of migrant NGO were represented. (c) Policy makers An initial review of literature suggested that both the conditions for family reunification and the manner in which they are implemented affect individuals integration into the United Kingdom. Therefore, we sought to interview at least one policy maker responsible for developing substantive policies and legislation and at least one responsible for their implementation. Candidates were identified through suggestions from NGOs, identifying authors of key policy reports and contacting key bodies responsible for developing family reunification policy. Invitations were sent to 15, but policy makers then self-selected for participation in the research. 1.4 Participants To ensure informed consent, participants were given an information sheet with details of the research, data protection and confidentiality. Participation was voluntary. All data from interviews and focus groups was anonymised and securely stored. The AIRE Centre achieved a sample of 18 individuals, three policy makers and six NGO representatives. Due to problems with recruiting for the focus group with individuals, additional individual interviews were conducted. Table 1.3 below (p. 81) gives details of the sample achieved. 6

8 CHAPTER 2: LEGISLATION AND POLICIES ON FAMILY REUNIFICATION In the United Kingdom, the following groups can be considered family members of TCNs: spouses, civil partners, fiancé(e)s, proposed civil partners, unmarried and same sex partners, children, parents, grandparents and other dependent relatives. However, the rules for family reunification differ depending both on category of sponsor (such as settled resident, points-based-system migrant, refugee) and on the type of family member applying for reunification. This chapter will outline the general admission criteria Third Country Nationals For the purposes of this section, TCN sponsors shall include settled TCN migrants (those with indefinite leave to remain in the UK) and points-based-system migrants. TCN refugees or those seeking subsidiary (humanitarian) protection shall be covered in the following section. Throughout this chapter, those people applying for permission to enter and/or stay in the UK on the basis that they are family members of settled TCNs fall under the family migration route Family Reunification under the family migration route Up until July 2012, the family reunification process for TCN family members of settled TCNs was generally twofold. First, a TCN had to apply for leave to enter 9 (or leave to remain if already in the UK) to live with their family member(s), which permitted them to stay for a limited period of time, normally two years. Second, after this period they could apply for indefinite leave to remain, which if granted, gave them the right to stay in the UK indefinitely, and afforded them greater rights (such as access to social welfare). However, in July 2012 the Government altered the Immigration Rules. 10 The result of this was to extend the initial period that TCNs have to wait before they apply for indefinite leave to remain. This probationary period is now five years, and is broken down into two stages. Initially, a TCN will be granted limited leave to enter (or remain) for two and a half years. They will then have to reapply (and demonstrate that they continue to comply with the appropriate criteria) in order to be granted further leave to remain for another two and a half years. Only at the end of this five year period will they will be entitled to apply for ILR. This section begins by outlining the general admission criteria for different categories of family member, before concentrating on criteria relating to accommodation, income, age and integration. As mentioned below (see Chapter 3), following recent changes to the Immigration Rules, new, more 8 As set out below, there are other routes under which family members can gain access to the UK e.g. as family members of Points-Based-System (PBS) migrants. 9 The entry clearance regime involves controlling immigration before entry to the UK. Visas (which apply to visa-nationals) and entry certificates (which apply to non-visa nationals) are collectively known as entry clearance. 10 The Immigration Rules are rules made by the Home Secretary as to the practice to be followed in the administration of the Immigration Acts. These rules are regularly amended and are not merely policy statements, but have the status of quasi-law. Secretary of State for the Home Department v. Pankina [2010] EWCA Civ 719, per Sedley LJ. 7

9 restrictive requirements for TCN family members of settled TCNs were introduced in July Where changes have been made, both the old and new requirements are set out below. a) General Requirements In order to gain leave to enter or remain in the UK, a TCN must show that the TCN family member that is sponsoring them is present and settled in the UK. 11 Some categories of family member who are already in the UK can apply for leave to remain as a family member, without needing to leave the UK and apply for entry clearance first. Those categories not permitted to apply in-country (e.g. adult-dependants and people in the UK as visitors), as well as those who wish to enter the UK to settle, must apply for entry clearance in the country in which they reside. Any family member applying for leave to enter or remain in the United Kingdom must show that they have no unspent criminal convictions. In addition to establishing that they are married to or in a civil partnership with their Sponsor and the general requirements stated above, spouses and civil partners must also show that they have met their spouse or civil partner in person, intend to live together permanently, are in a genuine and subsisting relationship (not a sham marriage ), and are not in a polygamous marriage in the UK. In addition to the general requirements, fiancé(e)s and proposed civil partners must establish that they have met their proposed spouse or civil partner in person, that they intend to marry within a reasonable period (usually defined as six months) and that they intend to live together permanently after their marriage or civil partnership. In addition to showing that they are the unmarried or same sex partner of their Sponsor and complying with the general requirements above, unmarried and same sex partners must also show that both partners have been living together in a relationship akin to marriage or civil partnership, which has subsisted for two or more years, that they have met each other in person, and that any previous marriage, civil partnership or similar relationship involving either the Applicant or Sponsor has permanently broken down. Applicants for leave to remain in the UK as a spouse, civil partner, fiancé(e) or proposed partner, unmarried partner or same sex partner must not have remained in breach of the Immigration Rules, although the first 28 days of overstaying is not taken into account. 12 For spouses and civil partners, their marriage/civil partnership must not have taken place after a decision to deport or remove them from the UK. Similarly, for fiancé(e)s and proposed civil partners, the beginning of their relationship must not have taken place after such a decision. Previously, Applicants who had lived with their settled partner outside the UK for four years as a spouse, civil partner, unmarried partner, or same sex partner could apply for settlement in the UK, provided that they were coming to the UK 11 Note that there is a possibility for family members of non-settled TCN migrants, including those who are here as a result of the Points-Based-System, to apply for family reunification. This is dealt with below. 12 Residence in breach of the Immigration Rules may have implications for a person s future immigration status. Examples of residence in breach of the Rules include overstaying, breaching a condition attached to leave, being an illegal entrant and/or using deception in an application for entry clearance, leave to enter or remain. Paragraph 320 of the Immigration Rules contains mandatory grounds for refusal of entry that last for a fixed period depending upon what the person has done, subject to certain exceptions. For example an Applicant who entered illegally and left voluntarily, and not at the expense of the Secretary of State for the Home Department, would be subject to a mandatory ban of one year. 8

10 to settle together. However, from July 2012, this is no longer the case. Now they must apply for leave to enter and/or remain in the same way that any other spouse/partner of a settled TCN would have to. Conditions of entry for dependent children under the age of 18 differ depending on the residence status of their parents. Where both parents are settled in the UK, the dependent child can apply for settlement, without the need for a probationary period. They can also progress straight to settlement if: one parent is deceased and the other is settled or coming here to settle in the UK; the parent who is settled/coming to settle in the UK has sole responsibility for the child s upbringing; one parent is settled or coming to settle in the UK and there are serious reasons why the child must be allowed to come here. In all other cases (e.g. where one parent is settled in the UK and the other has limited leave to remain) dependent children must apply for leave to enter or remain and spend a probationary period in the UK before being eligible for settlement. In addition they must show that they: Are not leading an independent life; and Are not married or in a civil partnership; and Have not formed an independent family unit; and Are aged under 18. In all cases, the child s parent(s) must meet the accommodation requirements set out below. Where one or both parents is applying for leave to enter or remain or has limited leave to remain, the Sponsor(s) must also meet the financial requirements set out below. The financial requirements do not apply where both parents are settled in the UK or the child is otherwise eligible to proceed straight to settlement. The requirements for adult dependant relatives of settled TCNs substantially changed on 9 July Before this date, the route was open to parents and grandparents aged over 65 (or, in the most exceptional compassionate circumstances, aged under 65), and to sons, daughters, sisters, brothers, aunts and uncles, if living alone outside the UK, in the most exceptional compassionate circumstances. To qualify under this route, adult dependant family members had to meet the maintenance and accommodation requirements set out below. Additionally, it was a requirement that the Applicant had no other close relative in his own country to whom he could turn for financial support. Since 9 July 2012, aunts and uncles have been excluded from the adult-dependants route now, only parents, grandparents, sons, daughters, brothers, and sisters are eligible. Parents and grandparents aged over 65 are no longer eligible simply because they are financially dependent on their settled TCN family member. Instead, the following new requirements apply to all adult dependent applicants: The Applicant must, as a result of age, illness or disability, require long term personal care (help carrying out everyday tasks e.g. washing, dressing and cooking) 9

11 The Applicant must be unable, even with the practical and financial help of the Sponsor, to obtain the required help in their country of origin either because it is not available in that country and there is no person who can reasonably provide it, or because it is not affordable The Sponsor must be able to meet the maintenance and accommodation requirements set out below and must sign a sponsorship undertaking form to confirm that they will be responsible for the Applicant s care without relying on public funds for a period of at least five years. In addition, as of July 2012 adult dependant relatives already in the UK on a different basis (e.g. as a visitor) can no longer switch to the adult dependant route by applying for settlement as the adult dependant family member of a settled TCN. They are now required to apply for leave to enter, meaning they must leave the UK if they are already here. b) Accommodation Requirements TCNs seeking leave to enter or remain in the United Kingdom as the family members of settled TCNs must meet an accommodation requirement, which remains unchanged after 9 July This requirement is broadly the same for all types of family migrant. 13 Spouses, civil partners, fiancé(e)s, proposed civil partners, unmarried partners, same sex partners and adult dependants, must show that there will be adequate accommodation for themselves and any dependants without recourse to public funds in accommodation which they (i.e. the Sponsor and/or Applicant) own or occupy exclusively. Dependent children aged under 18 must show that they will be adequately accommodated by the parent(s) or relative(s) sponsoring the child without recourse to public funds in accommodation owned or occupied exclusively by the parent(s) or relative. Accommodation is adequate if the parties can live there without breach of public health laws or statutory overcrowding. This requirement does not mean that Applicants and/or Sponsors must own an entire house or flat. It is, in theory, enough for them to have exclusive occupation of one room within a shared property. c) Income Requirements In order for TCN family members to gain leave to enter or remain in the United Kingdom, certain financial requirements must be met. These income requirements changed dramatically on 9 July Before 9 July 2012, spouses, civil partners, fiancé(e)s, proposed civil partners, unmarried partners and adult dependant relatives all had to show that they, and any dependants, would be adequately maintained without recourse to public funds. The same requirement applied to children aged under 18, where one or more parent was not settled in the UK The spouses, civil partners, unmarried and same sex partners and children of refugees, persons granted humanitarian protection, or persons granted temporary protection are exempt from the maintenance and accommodation requirements. 14 Note that this does not apply where the child is a British Citizen. 10

12 In order to meet the maintenance requirement, Applicants and Sponsors had to establish that they had maintenance equal to or greater than the funds available to an equivalent British family relying upon Income Support. Use of NHS services and state education were not counted as having recourse to public funds. In assessing whether sufficient funds would be available, persons admitted as spouses could take into account their own anticipated earnings. 15 In general, account would be taken of Applicants skills and qualifications, so it was possible to meet the maintenance requirement even without a firm job offer. However, those with poor qualifications or few skills generally needed to show that there was a credible job available to them, or that friends or family would be able to provide work for them. 16 Fiancé(e)s and proposed civil partners were not permitted to work until their leave had been extended after marriage. So they were not entitled to rely on future earnings in the assessment of the maintenance requirement. Following the case of Mahad/AM (Ethiopia and Ors) [2009] UKSC 16, Applicants and Sponsors could rely on third party support in order to meet the maintenance requirements. As of 9 July 2012, new financial requirements apply. Where a settled TCN wants to sponsor a spouse, civil partner, fiancé(e), proposed civil partner or unmarried partner, the Sponsor must have an annual gross income of 18,600, or 1550 per month. This amounts to approximately 144% of the national minimum wage. 17 In cases where the settled TCN is sponsoring a partner and a dependent child aged under 18, and one of the child s parents has (or is applying for) limited leave to remain in the UK, the financial requirement is set at 22,400 or 1866 per month, representing approximately 173% of the national minimum wage. An additional 2,400 is required for each subsequent dependent child. 18 Relying on UK tax rates for 2012, a rudimentary calculation based on an individual tax allowance and assuming that a person is within the lowest tax bracket for the UK (i.e. 20%) would mean a minimum net income requirement of 16,501 per year, or 1, per month. 19 This does not include obligatory National Insurance contributions. Based on Eurostat figures for 2011, this means that an individual applying to bring a spouse or partner to the UK is required to earn 119% of the national median household income. 20 The income requirement can be met through income generated by employed or self-employed work. Where the Applicant partner is already in the UK, has permission to work here and is applying for leave to remain, income from their employment or self-employment can be counted towards the income threshold. However, where the Sponsor s partner is applying for leave to enter the UK, neither income from employment outside the UK, nor prospective offers of employment in the UK may be counted. Where income generated from employment or self-employment is insufficient to 15 Immigration Directorate Rules, March 2006, Chapter 8 16 Macdonald and Webber, Macdonald s Immigration Law and Practice, (5th Edition, Lexis Nexis, London 2001), para Based on the 2012 national hourly minimum wage 6.19 and a 40 hour week. Eligibility for means-tested benefits for those on low incomes has not been factored into this calculation. 18 According to the Home Office Family Migration Statement of Intent, these new requirements reflect the level of income at which a couple, taking account of the number of children they have, generally cease to be able to access income-related benefits. 19 This assumes that a person would have a tax allowance of 8,105 and be taxed on anything above this at a rate of 20%. This does not include obligatory National Insurance contributions. 20 The Eurostat figures are available at: (last visited on 8 January 2012). This figure is based on the net minimum income requirement calculated as a percentage of the 2011 net median household income for the UK (EUR 17,138), converted into GBP using and exchange rates on 12 December The authors acknowledge that this figure is not precise. 11

13 meet the financial requirement, other specified sources of income and savings may be taken into account to make up the shortfall. The financial requirement must now be met at the date of the application for leave to enter or remain. It must also be in place at the date of any application for further leave to remain and the date of application for settlement. Sponsors and Applicants cannot rely on third party support to meet the financial requirement. Nor can they take into account income from any of the following: those living in the same household as the Sponsor and/or Applicant, 21 loans or credit facilities, income related welfare benefits, contribution-based Jobseeker s Allowance, contribution-based Employment and Support Allowance, Incapacity Benefit, Child Benefit, Working Tax Credit, Child Tax Credit or any other source of income not specified in the Immigration Rules. The new financial requirement does not apply where the Sponsor is in receipt of specified disability related welfare benefits or Carers Allowance. d) Age Requirements Applicants for leave to enter or remain as the spouse, civil partner, fiancé(e), proposed civil partner, or unmarried or same-sex civil partner must establish that both they and their sponsor are aged 18 or over. 22 To be eligible for family reunification as a dependent child, an Applicant must be aged 18 or under. Before 9 July 2012, special rules applied to the parents and grandparents of settled TCNs, provided that they were aged 65 or over. Whilst all other Applicants for leave to enter/remain as adult dependants had to show the most exceptional compassionate circumstances, parents and grandparents over 65 only had to show that they were financially dependent, in whole or in part, on their settled TCN family member. As of 9 July 2012, there is no longer any distinction between parents and grandparents of any age. e) Integration Requirements Two integration requirements apply in the UK: a language requirement and a Knowledge of Life in the UK requirement. On 9 July 2012, the language requirement was changed for certain family members applying for settlement in the UK. The requirement for knowledge of life in the UK has remained the same. There are two stages at which a language requirement applies to family migrants: first, when they are applying for initial leave to enter or remain in the UK, and second, when they are applying for 21 However, there is an exception for the income of any child of the Applicant who has turned 18 and continues to be counted towards the higher income threshold that the Applicant has to meet until they qualify for settlement on the five year family route). 21 Until recently, the age limit for these groups was raised to 21 years of age. However, following the Supreme Court s decision in R (on the application of Quila and Others) v. Secretary of State for the Home Department [2010] EWCA Civ 1482 (see Chapters 3 and 5, below), in which the age limit was found to violate Article 8 ECHR, the limit has been returned to 18 years of age. This is still higher than the legal age for marriage in the United Kingdom, where anyone aged 16 or over is legally entitled to marry. 22 Ibid. 12

14 settlement. As set out below, the language requirements apply to many, but not all, family members of settled TCNs. Since 29 November 2010 there has been an English language requirement for those people applying for leave to enter or leave to remain in the UK as spouse, civil partner, fiancé(e), proposed civil partner, unmarried partner or same sex partner of a TCN settled in the United Kingdom. Applicants may meet the language requirement in one of the following ways: Passing a UK Border Agency approved test at level A1 or above of the Common European Framework of Reference in speaking and listening skills; or Having a degree or relevant Masters degree or PhD, taught in English; or Being a national of a specified majority English-speaking Country. 23 The language requirement does not apply to applicants aged 65 or over at the date of their application, those with a physical or mental condition that prevents them from meeting the requirement and where there are exceptional compassionate circumstances that prevent an Applicant from complying with the requirement. There is presently no English language requirement for dependent children aged under 18 who are applying for leave to enter or remain in the UK. There is also a language requirement for certain types of family member who are applying for settlement in the UK. Before 9 July 2012, there were two different ways of meeting the requirement. Those with sufficient English skills could take the Knowledge of Life in the UK test, which required the equivalent of ESOL level 3 English. Those who were less proficient in English could instead opt to take an accredited ESOL course and exam containing citizenship elements from an accredited body. As of 9 July 2012 anyone applying for settlement must pass an English language test at B1 level in addition to a separate Knowledge of Life in the UK test. This new requirement does not apply to those from majority English speaking countries, applicants who are aged over 65 or under 18 at the date of their application, adult dependants, those with a physical or mental condition that prevents them from meeting the requirement or where there are exceptional compassionate circumstances. Since 2 April 2007, all spouses, civil partners, unmarried partners and same sex partners of settled TCNs have had to pass the Knowledge of Life in the UK test in order to acquire settlement. As outlined above, on 9 July 2012, the precise requirements changed. Now everyone must take the Knowledge of Life in the UK test unless they are over the age of 65 or under 18 at the time of their application. Applicants are entitled to multiple attempts to pass the test and can apply for further leave to remain to give themselves time to pass. However, each attempt at the test costs 50. f) Legal Status of Admitted Family Members This section will address the rights of admitted family members who have been sponsored by settled TCN family members, and in particular, their access to work, education and integration programmes. For information on residence status, see Section above. 23 Specified in the Immigration Rules as being: Antigua & Baruda, Bahamas, Barbados, Belize, Canada, Dominica, Grenada, Guyana, Jamaica, New Zealand, St Kitts & Nevis, St Lucia, St Vincent & the Grenadines, Trinidad & Tobago, the United Kingdom and the United States of America. 13

15 Access to work: For migrants under the family migration route, spouses and partners have a right to work during the probationary period. Fiancé(e)s do not have this right for the six month period. Until the family members of settled TCN sponsors are granted settlement, they cannot access benefits, although partners in present or previous employment can claim contributory benefits. 24 Education: In the UK, access to some pre-school and all compulsory schooling is free. 25 Local authorities are obliged to provide suitable full-time education for all children of compulsory school age (currently 5-16) regardless of the immigration status of the child. This education must be appropriate to their age, ability and any special educational needs they may have. Entitlement to additional benefits is more restricted. As settled TCN sponsors must demonstrate their ability to maintain applicants under the family migration route, they are exempt from claiming certain benefits e.g. income-based support. Consequently, they are restricted from accessing free school meals, help with travel and clothing costs and other advantages available to parents who are in receipt of benefits classed as public funds. Civic participation: Provided that family members under the family migration route are not citizens of a Commonwealth country themselves, they are not eligible to vote. There is no distinction between those with temporary leave to remain and those who have acquired settlement in this regard Family Reunification for TCN PBS Migrant Sponsors Some TCNs admitted under the points based system (PBS) as economic migrants or students have rights to family reunification. These apply to TCNs who are: highly skilled migrants (admitted under Tier 1 of the PBS); 26 skilled workers (admitted under Tier 2 of the PBS); and adult students (admitted under Tier 4 of the PBS) and their family members. There is no right to family reunification for TCNs who are temporary workers (admitted under Tier 5 of the PBS). The right to family reunification for non-settled TCNs only extends to dependants, which means spouses, civil partners, unmarried partners, same sex partners and children under 18. a) General Requirements The following requirements apply to spouses, civil partners, unmarried partners and same sex partners of TCNs admitted through Tiers 1, 2 and 4 of the PBS: 24 Note that Child Benefit or Child Tax Credit can be claimed for children subject to immigration control, as long as one parent has recourse to public funds. 25 "Public funds" are defined in the Immigration Rules, and the benefits and services listed do not include education or any education funding. 26 Note that this route has now closed. 14

16 The Applicant must be the spouse, civil partner, unmarried partner or same sex partner of a person who has valid leave to enter or remain as a relevant PBS migrant, or is at the same time, being granted entry clearance or leave to remain as a relevant PBS migrant. In the case of unmarried or same sex partners: o Any previous marriage or civil partnership or similar relationship by the Applicant or the PBS migrant with another person must have permanently broken down; and o The Applicant and the PBS migrant must not be so closely related that they would be prohibited from marrying each other in the UK; and o The Applicant and the PBS migrant must have been living together in a relationship similar to marriage or civil partnership for a period of at least two years. The marriage or civil partnership, or relationship similar to marriage or civil partnership, must be subsisting at the time the application is made The Applicant and the PBS migrant must intend to live with the other as their spouse or civil partner, unmarried or same-sex partner throughout the applicant s stay in the UK The Applicant must not intend to stay in the UK beyond any period of leave The following requirements apply to children: The child needs to be under the age of 18, or if over 18, must have previously been granted leave to remain as a child of a PBS migrant; S/he must not be married or in a civil partnership, must not have formed an independent family unit, and must not be leading an independent life; S/he must not intend to stay in the UK beyond any period of leave granted to the PBS migrant parent; Both parents must be lawfully present in or lawfully entering the UK unless the PBS migrant parent is the sole surviving parent or has sole responsibility for the child; Tier 4 migrant Sponsors (students) must be enrolled in a course of study of more than six months; The same rules apply to a child born in the UK; Indefinite leave to remain for a child will be granted at the same time as for parents as long as the child is not independent, and has sufficient knowledge of English and of life in the UK unless under 18 at the time of application. b) Accommodation Requirements Family members of PBS migrant Sponsors must be able to support themselves for the duration of their stay in the UK without recourse to public funds. c) Income Requirements The income requirement for family members of PBS migrants depends on the visa category that their Sponsor falls into. Each family member of Tier 1 migrant Sponsors, in cases where the Sponsors are outside the UK or have been in the UK for less than 12 months, will need to demonstrate that they, their Sponsors, or for children, his/her other parent (who is also legally present in the UK) have at least 1,800 to 15

17 support themselves. If the Tier 1 migrant has been in the UK for more than 12 months, the amount is 600. In both cases, the amount is in addition to the requirement that the Tier 1 migrant prove s/he has enough money to support himself/herself. Each family member of a Tier 2 migrant must have 600 to support himself/herself. This requirement can be met by: Having savings of 600 which must have been held for at least three months prior to the date of application; or The Tier 2 Sponsor providing a written undertaking that, should it become necessary, it will maintain and accommodate the family member for a month. The undertaking may be limited, providing the limit is at least 600 per family member. The maintenance requirement for each family member of a Tier 4 migrant depends upon (i) the length of the course, (ii) where the main applicant will be studying in the UK, and (iii) whether the main applicant already has an established presence studying in the UK. The family member must show that he/she has enough money to cover his/her monthly living costs whilst the Tier 4 migrant is studying in the UK. For family members of Tier 4 migrants without an established presence in the UK studying in inner London, this amount is 600 per month per family member, 450 per month per family member for elsewhere in the UK. Where the Tier 4 migrant has an established presence in the UK, their family members will have to prove they have at least two months maintenance of 600 per month if their Sponsor is studying in inner London and two months maintenance of 450 per month if the Sponsor is studying elsewhere in the UK. d) Age Requirements In order to be granted entry clearance as a spouse, civil partner, unmarried or same sex partner, the family member and the main applicant must be aged 18 or over on the date s/he is due to arrive in the UK In order to apply for leave to remain as the child of a PBS migrant, the child must be under the age of 18 on the date of application. Where the child is aged 18 or over, s/he must have last been granted leave as the family member of a PBS migrant or leave as a PBS migrant his/herself. However, applicants will not be considered a child family member of a PBS migrant where they: are married or in a civil partnership; have formed an independent family unit; or are living an independent life. e) Integration Requirements There are no pre-entry integration requirements for family members of TCN migrants on PBS visas. However, applicants for settlement must meet the same requirements as family members of settled TCNs or British Citizens. 16

18 f) Legal Status of Admitted Family Members This section will address the rights of admitted family members who have been sponsored by PBS migrants, and in particular their access to work, education and integration programmes. For information on residence status, see Section above. Access to work: Partners of migrants under Tier 1 visas have a right to work during their limited period of leave. 27 Dependants of migrants under Tier 4 are allowed work only if the main applicant is pursuing study at degree level or above. Education: For the purposes of entitlement to education, PBS migrant family members are treated the same way as family members of settled TCN sponsors (see above). Civic Participation: Provided that family members of PBS migrants are not citizens of a Commonwealth country themselves, they are not eligible to vote Turkish national Sponsors under the Ankara Agreement The Ankara Agreement, signed between the EU and Turkey (and therefore binding on all members of the Union) has provisions entitling Turkish nationals who have leave to enter the EU (to work or establish themselves) to certain privileges, including the right to remain and protection from expulsion. In addition, Turkish nationals benefit from a standstill clause, preventing them from being subject to more restrictions than were in place at the time at which the agreement came into effect for the host Member State. 2.2 Refugees and Holders of Subsidiary Protection The family members of refugees and holders of subsidiary protection are subject to different rules, depending on whether they were pre-existing family members at the time of flight and on the type of family member that they are. There are less stringent requirements for pre-existing spouses, civil partners, unmarried partners and children aged under 18 than for other family members, and those acquired after the Sponsor fled the country in which he was habitually resident. a) General Requirements The main requirements for those seeking to join or remain with their family member as a preexisting spouse or civil partner are that: The Applicant is married or is the same-sex partner of a person who currently has refugee status or holds humanitarian protection in the UK; and The marriage or civil partnership did not take place after the refugee/holder of humanitarian protection left the country of his former habitual residence in order to seek asylum; and 27 However, unless they have a degree in medicine or dentistry from a UK (or UK recognised) institution they are not able to seek employment as a doctor or dentist in training. 17

19 Each of the parties intends to live permanently with the other as his or her spouse and civil partner, and the marriage is subsisting; and If seeking leave to enter, the applicant holds a valid UK entry clearance for entry in this capacity. The main requirements for pre-existing unmarried and same sex partners of those granted refugee status or humanitarian protection in the UK are that: The applicant is the unmarried or same-sex partner of a person who is currently a refugee or holder of humanitarian protection in the UK; and The parties have been living together in a relationship akin to marriage or civil partnership, which has subsisted for two years or more; and The relationship existed before the person granted asylum left the country of his former habitual residence in order to seek asylum; and Each of the parties intends to live permanently with the other as his or her unmarried or samesex partner, and the relationship is subsisting; and The parties are not involved in a consanguineous relationship with one another; and If seeking leave to enter, the applicant holds a valid UK entry clearance for entry in this capacity. The main requirements for children of people granted refugee status or humanitarian protection in the UK are that the child: Is aged under 18; and Is the child of a parent who is currently a refugee or holder of humanitarian protection in the UK; and Was part of the family unit of the person granted refugee status or humanitarian protection at the time that the refugee/holder of humanitarian protection left the country of his habitual residence in order to seek asylum Is not leading an independent life, is unmarried and is not a civil partner, and has not formed an independent family unit; and If seeking leave to enter, holds a valid United Kingdom entry clearance for entry in this capacity. Where refugees and holders of humanitarian protection have limited leave to remain in the United Kingdom (i.e. where they have not acquired indefinite leave to remain) their successful family applicants will also be granted limited leave to remain in the UK. For post-flight family members (those acquired after the refugee/holder of humanitarian protection left his country of habitual residence) the same rules apply as for settled TCNs and British Citizens. b) Accommodation Requirements There are no accommodation requirements for family reunification for pre-existing spouses, civil partners, unmarried partners, same-sex partners or children aged under 18, of those holding refugee status or humanitarian protection in the UK. For post-flight family members, the requirements are the same as for family members of settled TCNs or British Citizens. c) Income Requirements 18

20 There are no income requirements for family reunification for pre-existing spouses, civil partners, unmarried or same-sex partners, or children aged under 18 of those holding refugee status or humanitarian protection in the UK. For post-flight family members, the requirements are the same as for family members of settled TCNs or British Citizens. d) Age Requirements For post-flight family members, the requirements are the same as for family members of settled TCNs or British Citizens. The children of refugees and those with humanitarian protection in the UK must be aged under 18 at the time of their application in order to be eligible for family reunification under the special route for families of refugees. e) Integration Requirements There are no language or Knowledge of Life in the UK test requirements for the pre-existing family members of those with refugee status or humanitarian protection in the UK. For post-flight family members, the requirements are the same as for the family members of settled TCNs or British Citizens. f) Legal status of admitted family members This section will address the rights of admitted family members who have been sponsored by refugees and holders of subsidiary protection, and in particular their access to work, education and integration programmes. For information on their residence status, see Section 2.2 above. Access to work: Partners of asylum seekers are not allowed to work if they are subject to immigration control. Partners of refugees are allowed to work. Education: For the purposes of entitlement to education, family members of refugees are treated the same way as family members of settled TCN sponsors (see above). However, some family members of refugees are entitled to benefits (not being subject to immigration control) and consequently may be entitled to free school meals, help with travel and clothing costs and other advantages available to parents who are in receipt of benefits classed as public funds. Civic Participation: Provided that family members of PBS migrants are not citizens of a Commonwealth country themselves, they are not eligible to vote. 2.3 Union Citizens The family members of those directly entitled to EU free movement rights acquire dependent rights of residence in the UK, i.e. their right to reside is parasitic on their family members exercising free movement rights. Article 23 of the Citizenship Directive 2004/38 gives TCN family members the right to work in the UK. 19

21 a) General Requirements Family members, for the purpose of EU free movement rights, are defined in Article 2(2) of Directive 2004/38 as: spouses; civil partner(s), if the relevant host Member State treats registered partnerships as equivalent to marriage; direct descendants who are under the age of 21 or are dependants (and those of the spouse or civil partner); and dependent 28 direct relatives in the ascending line, including those of the spouse or civil partner. TCNs who do not fall within the definition of family member in Article 2(2), do not have an automatic EU law right of entry and residence in the host Member State. However, Article 3(2) Directive 2004/38 requires Member States to facilitate entry and residence to a partner with whom the EU citizen has a duly attested durable relationship, and to other family members of the EU citizen, who are either his dependants or members of his household, or who on serious health grounds require personal care from the family. Any denial of entry or residence has to be expressly justified in all the circumstances of the case. If admitted, they are treated in the same way as family members admitted under Article 2(2). For more information on other family members see Section below, and the recent decision of the CJEU in Rahman. Right To Enter and Initial Residence TCN family members have a directly effective, automatic right under EU law to enter the UK to join or accompany their EEA family members. Consequently, while it is possible for them to obtain an entry visa, known in the UK as an EEA family permit, this is not required. In practice, airline carriers will often refuse to carry passengers who are not able to point to a document confirming their right to enter the UK. TCN family members falling within Article 2(2) have an initial right of residence for three months if: Their Union Citizen family member is exercising their initial right of residence under Article 6 Directive 2004/38 EC; and The EU citizen and family member(s) do not become an unreasonable burden on the social assistance system of the UK (Article 14(1) Directive 2004/38 EC) Right of Residence After Three Months TCN family members have an extended right of residence in the UK provided that their Union Citizen family member is a qualified person, within the meaning of Regulation 6, Immigration (European Economic Area) Regulations 2006 ( the EEA Regulations 2006 ). The Union Citizen will be a qualified person provided that their family member is a: Worker or self-employed person; Person with retained worker/self-employed status through being temporarily unable to work as a result of illness or disability; Person with retained worker/self-employed status through being duly recorded as involuntarily unemployed after having been employed for more than one year, and having registered as a jobseeker with the relevant employment office; 28 The status of dependency is determined objectively. The question is whether the Union Citizen actually provides support, not whether there is a need for such support (Case 36/85 Centre Public de l Aide Sociale de courcelles v. Lebon [1987] ECR 2811). 20

22 Jobseeker; Self-sufficient person with comprehensive sickness insurance; Permanent Residence TCN family members who have resided legally in the UK for a continuous period of five years automatically obtain the right of permanent residence under Article 16 of Directive 2004/38. The term legally has been interpreted to mean periods of residence within the meaning of Articles 6-15 of the Citizenship Directive i.e. completed as the family member of a qualified person. 29 Breaks of fewer than six months in any one year do not affect this. In addition, Article 17 sets out certain circumstances in which EEA nationals and their family members acquire permanent residence before five years have passed. Applicants may apply to the UK Border Agency for a Document Certifying Permanent Residence, which acknowledges permanent residence, however this is not required. Article 12(3) Directive 2004/38 EC provides that the departure or death of the citizen of the Union does not entail the loss of the right of residence of the children or the parent who has actual custody of them, irrespective of their nationality, if the children reside in the host Member State and are enrolled at an educational establishment for the purpose of studying there, until the completion of their studies. In R (Ibrahim) v London Borough of Harrow [2010] ECR 1-nyr, the Grand Chamber held that the right of residence in the host Member State of children who are in education there and of the parent who is their primary carer, cannot be made subject to the condition that they have sufficient resources and comprehensive sickness insurance cover. Article 13 of the Directive gives protection to family members in the event of the death of the Union Citizen or divorce, annulment of marriage or termination of a registered partnership to ensure that they can retain their rights of residence within the territory of the host member state. Until the acquisition of permanent residence, this continued right of residence requires the TCN family member to continue exercising free movement rights themselves. A2 Nationals Family members of Bulgarian and Romanian nationals have all the residence rights as that of other EEA nationals in the UK, as do their family members, with one exception. Under Regulation 2 of the Accession (Immigration and Worker Authorisation) Regulations 2006, they do not have the automatic right to take up work in the UK, or the right to reside as a jobseeker. These restrictions may last up until 31 December 2013, but must end after that. b) Accommodation Requirements There are no accommodation requirements for TCN family members of Union Citizens who are exercising free movement rights as workers, self-employed people, jobseekers or permanent residents. Where Union Citizens are exercising free movement rights as self-sufficient people or students, they must show that they will not become an unreasonable burden on the social assistance system of the UK. This includes demonstrating that they will have adequate 29 See Joined cases of C-424/10 and C-425/10 Ziolkowski and Szeja v. Land Berlin [2011] 21

23 accommodation without becoming an unreasonable burden on the social assistance system of the UK. c) Income Requirements There are no income requirements for the TCN family members of Union Citizens who are exercising free movement rights as workers, self-employed people, jobseekers, or permanent residents. Where Union Citizens are exercising free movement rights as self-sufficient people or students, they must show that they have sufficient resources for them and their family member(s) not to become an unreasonable burden on the social assistance system of the UK. Self-sufficient and student Union Citizens and their family members must also have comprehensive sickness insurance. The UK government and UK Border Agency interpret the comprehensive sickness insurance condition as requiring private sickness insurance. However, the European Commission has said that public sickness insurance (such as entitlement to NHS care) also satisfies the condition and is currently bringing infringement proceedings against the UK on this point. d) Age Requirements There are no age requirements for TCN spouses of Union Citizens. Non-dependent TCN children must be aged under 21 in order to enjoy a right of residence as the family member of a Union Citizen. Notably, this is three years older than the age requirement for (dependent) children of UK nationals and settled TCNs. e) Integration Requirements There are no language or other integration requirements for the TCN family members of Union Citizens exercising free movement rights in the UK. f) Legal status of admitted family members This section will address the rights of EEA nationals, and in particular their access to work, education and integration programmes. For information on their residence status, see Section 2.3 above. Access to work: Partners of Union Citizens have the right to work provided the family member on whom their application is based is exercising free movement rights. However, A2 applicants (citizens of Bulgaria and Romania) are subject to a Worker Registration Scheme. Discrimination on the part of employers on the basis of nationality is prohibited (see above). Education: As mentioned above, local authorities are obliged to provide suitable full-time education for all children of compulsory school age regardless of the immigration status of the child. Education in some pre-schools, and all compulsory schooling, is free. Civic Participation: Union Citizens can vote in European and local elections in the UK, but not in the UK Parliamentary general elections or referendums. Citizens of Cyprus and Malta may vote in all 22

24 elections held in the UK. 30 There is no difference between those who have and those who have not acquired the right to permanent residence in this regard. 2.4 Nationals of the Member State In most respects, TCN family members of UK nationals are in the same position as TCN family members of settled TCNs. They fall under the Immigration rules, so the requirements set out in section 2.1 above, apply. There are, however, two important exceptions to this rule. First, UK nationals will be treated as EEA nationals to the extent that their situation falls within the scope of EU free movement law. As we have seen, this will be the case where a UK national has worked or been self-employed in another Member State and returns to the UK with their TCN family member. 31 Second, British citizenship can make a difference in cases where Article 8 ECHR is in play. In ZH (Tanzania) v. Secretary of State for the Home Department, 32 the fact of a child s British citizenship was a significant factor in the Supreme Court s decision that it would be a breach of its Article 8 ECHR right to family life for the parent to be removed from the United Kingdom. Legal status of admitted family members TCN family members of British nationals generally have the same rights as those of settled TCNs. Where UK nationals have exercised free movement rights in another Member State and are treated as EEA nationals on their return, their family members have the same rights as family members of Union Citizens. 2.5 Conclusion The rules on family reunification are complicated and depend on a number of factors, including the category of Sponsor and category of family member or dependent applying. The survey above indicates that the rules for EEA nationals family members are generally less restrictive than those that apply to family members of settled TCN migrants, PBS migrants, refugees and UK nationals. Family members of settled TCN migrants and UK nationals face the most stringent income, accommodation, age and integration requirements (last visited on 8 January 2013). 31 Regulation 9, Immigration (European Economic Area) Regulations ZH (Tanzania) v. Secretary of State for the Home Department [2011] UKSC 4. 23

25 CHAPTER 3: POLICY DEVELOPMENTS AND POLITICAL DEBATE This chapter discusses the policy developments relating to family migration in the United Kingdom over the past decade, and the political debates that have accompanied them. We have focused on requirements concerning income, housing, integration and age. 3.1 Overview of immigration Broadly speaking, non-eu family migration 33 to the UK fell between 2001 and 2011: there has been a downward trend in the number of Entry Clearance Visas granted and in the number of non-eu family migrants granted leave to enter the UK. In 2010, non-eu family migration accounted for 17% of all non-eu immigration, and non-eu family migration comprises a smaller proportion of overall migration now than it did in the 1990s. 34 Entry data collected by the Home Office indicates that, amongst non-eu family migrants granted leave to enter the UK, the highest proportion is from Asia and that this has been the case for the past 10 years. Entry data also shows that women outnumber men and that the biggest proportion of non-eu family migrants admitted to the UK are on spousal visas. Data on family permits granted to family migrants sponsored by Union Citizens only exists for Broadly speaking, the number of EEA family permits fell during those years, but this data is not broken down by age, nationality or gender. 3.2 Policy developments since 2001 Date Policy Type Detail of policy 2003 Age Minimum age requirement for Applicants for spouse/partner visas increased from 16 t 2004 Age Minimum age requirement for Sponsors of spouse/partner visas increased from 16 to 2004 Integration ESOL Level 3 test introduced for citizenship 2005 Integration Life in the UK test introduced for citizenship 2006 Income Income requirement interpreted as being minimum level above which families b eligible for income support 2007 Integration ESOL Level 3/Life in the UK test introduced for settlement 2008 Age Minimum age requirement for spouse/partner visas increased to Income Tribunal case decides that third party support can be relied upon to meet the i requirement 2010 Integration A1 level pre-entry test introduced 2011 Age Minimum age requirement for spouse/partner visas lowered to 18, following suc legal action 2012 Income Minimum income requirement for spouse/partner visas increased to 18,600 for a p with incremental increases for child dependants 33 Non-EU family migration includes Applicants sponsored by TCNs and UK nationals but excludes those sponsored by Union Citizens. 34 Blinder, Non-European migration to the UK: family unification and dependents, Migration Observatory (Oxford 2012), 24

26 3.2.1 Income requirements Policy developments regarding income requirements have primarily concerned the TCN family members of settled TCNs and British Citizens. Between 2001 and 9 July 2012, the income requirement remained constant. As described above (Chapter 2), TCN partners and dependants should be adequately maintained, without recourse to public funds. From 2006, this requirement was interpreted as requiring income, after deducting costs for housing, at the minimum level at which families become ineligible for income support. 35 In its family migration consultation in 2011, 36 the Home Office proposed raising the income threshold and preventing Sponsors and Applicants from relying on third party support, or past or prospective earnings of Applicants not currently in the UK. Commentators have traced this policy proposal back to the Conservative party s manifesto pledge of 2010 to cut net migration to the tens of thousands. 37 This pledge made its way into the Coalition Agreement, made between the Conservatives and Liberal Democrats when they formed a government in 2010, and has influenced developments in all areas of immigration policy. 38 In its family migration consultation, 39 the Home Office offered numerous justifications for changes to the income requirement. Some were operational. The Home Office argued that: (i) the existing system was too complex because there were two different levels of income support in operation; and (ii) it was too difficult for UKBA officials to verify Applicants job offers, prospective earnings, or offers of third party support. Other justifications related to the present economic climate. The Home Office argued that in the present economy, it is not appropriate to take even firm job offers for Applicants into account in determining whether the income threshold is met (no explanation was given for this proposition). It also argued that raising the income threshold for family migrants was necessary to reduce the burden on the taxpayer. Some respondents to the consultation pointed out that before settlement, most family migrants are not entitled to claim benefits, so the reducing the burden on the taxpayer argument is spurious. 40 The consultation document also sought to justify the increase by stating that the present requirement did not guarantee sufficient income to guarantee a reasonable standard of living that would support integration. 35 This is the result of the Tribunal decision in KA (Pakistan) [2006] UKAIT Home Office, Family migration: a consultation, (London 2011). 37 Cavanagh, Immigration: a policy distorted by targets, The Guardian, Thursday 17 November 2011; Blinder (Oxford 2012); Newland Chase, Family immigration, the debate Part one (2010), (last visited on 15 January 2013). 38 Support for the impact of this pledge comes from a letter, written by Home Secretary, Theresa May to leader of the Liberal Democrats, Nick Clegg, on 14 March, 2012, which was leaked to the Daily Telegraph newspaper shortly before an increased income threshold was announced. Introducing a range of proposed changes to the requirements for family migration, Ms May referred to broad public support for reducing the number of migrants who enter the UK through the family route, Blinder (Oxford 2012). 39 Home Office (London 2011). 40 ILPA (Immigration Law Practitioners Association), Response to UK Border Agency consultation (family migration) (2011), (last visited on 15 January 2013). Migrants Rights Network, Migrants Rights Network submission: family migration consultation, (2011). (last visited on 15 January 2013). 25

27 The final set of justifications for the increased income requirement related to the fiscal and employment status of previous Applicants and Sponsors for family reunification. The Home Office said that (i) in 2009, 28% of applicants for spousal visas were not in employment at the point of their application, and would therefore need to be supported by their sponsor unless they found employment; and (ii) in 2009, 6% of prospective sponsors of family migrants earned under 5,000. The implied thrust of these objections was that under the existing rules, there was a danger of reliance on the state. However, the Home Office did not say how many of these Applicants or Sponsors were successful and provided no evidence that any had become reliant on the taxpayer. Absent this link, it is unclear how either of these statistics supports an increased income threshold, or the exclusion of applicants prospective earnings from calculating whether the income threshold has been met. Despite criticisms raised by ILPA, Migrants Rights and others (see above), the reducing the burden on the tax-payer justification became the dominant, publically-voiced argument for the new income requirements. In 2012, Immigration Minister Damian Green said that the proposals would result in better family migration, adding that if you can t support your foreign spouse, you can t expect the taxpayer to do it for you (reported by Webber 2011). In 2011, the government commissioned the Migration Advisory Committee to consider what the income threshold would need to be in order to ensure that Sponsors could support Applicants without them becoming a burden on the state. The government followed the committee s conclusion that an income-related threshold of between 18,600 and 27,500 should be implemented to support an increased income threshold (Migration Advisory Committee 2011). However, it is notable that, in calculating the likely burden on the state, the Migration Advisory Committee assumed that Sponsors families would be entitled to claim income-related benefits if they earned under a certain amount. In fact, until family migrants have acquired settlement, most are barred from claiming income-related benefits. So, to the extent that politicians have relied on the report to justify a particular income threshold at the admission stage, they have proceeded from a false assumption. The Migration Advisory Committee explicitly stated that it did not, in its calculations, consider the amount necessary for a reasonable standard of living. It also said that the impact of its proposals on integration was distinct from the primary focus in this report. It concluded that there was no reason to favour any particular one of the options we consider in this report over the others on the basis of likely impact on integration. 41 What the Migration Advisory Committee did say was that an income threshold of 18,600 would lead to 45% of present applications for spousal visas being rejected and that an income requirement of 27,000 would lead to 60% being rejected. Writing in The Guardian, after the publication of the Migration Advisory Committee Report, Matt Cavanagh, Director of IPPR argued that the policy proposal was, from the government s point of view, all about meeting its net migration target. 42 Following the Migration Advisory Committee s report, the government went on to impose a new minimum income requirement of 18,600 for sponsoring spouses, civil partners, unmarried 41 Migration Advisory Committee, Review of the minimum income requirement for the sponsorship under the family migration route, MAC (London 2011), section Cavanagh, The Guardian,

28 partners, and same sex partners, with additional income requirements for sponsoring dependants (see Chapter 2 above) Housing requirements As outlined in Chapter 2 above, the groups facing the strictest accommodation requirements are the family members of settled TCNs and British Citizens. Over the past 10 years, the housing conditions for entitlement to family reunification have remained broadly consistent for this group. Across the 10-year period, the requirement, as described in Chapter 2 above, has remained the same. Policy makers interviewed in this research said that the aim of the requirement is to prevent TCN family members from becoming a burden on the taxpayer, and that the reason for the lack of change in the requirement is that it is perceived to be adequate in meeting its aim. For the past 10 years there has been a voluntary system under which Sponsors and Applicants can, for a small fee, ask their local authority to visit their intended accommodation and certify that it is not overcrowded. In its recent consultation on family migration, the Home Office proposed making this scheme compulsory where Sponsors cannot show that they own, have a mortgage over or a tenancy agreement for the property in which they plan to live. 43 This proposal was ultimately dropped, for reasons that are unclear. In its consultation response, the Home Office simply said: we are not making this change now but will continue to consider this proposal Integration Requirements It was in 2001, in the wake of race riots in northern British cities, that the UK began to introduce integration requirements for family migrants. Reports into the three main locations of the riots Bradford, Oldham and Burnley highlighted social segregation as a major background factor 45 and in 2001, the Community Cohesion Review Team reached the same conclusion. 46 There was a growing consensus that an unqualified version of cultural pluralism had come to an end 47 and that more needed to be done to promote cohesion. Politicians and advisors, including Ann Cryer, David Blunkett, Lord Rooker and Bernard Crick drew links between social cohesion, language skills and knowledge of British culture. 48 The culmination of the review process was a series of proposals in the Home Office White Paper, Secure Borders, Safe Haven (2002), including a new citizenship test. This was to lay the foundation for integration requirements for TCN family members of settled TCNS and British Citizens. The test s aim was to strengthen the ability of new citizens to participate in society and to engage actively in our democracy and to promote individuals economic and social integration 49 [emphasis added]. In 2004, ESOL level-3 language tests were introduced as an alternative for applicants for citizenship. In 2005, it became a condition of acquiring citizenship that applicants pass the Life in the UK test and/or ESOL test with citizenship elements. 43 Home Office (London 2011), p Home Office, Family migration: response to consultation, (London 2012a), p Ryan, Integration and Naturalisation tests: the new way to European Citizenship Country report: United Kingdom, Centre for Migration Law, Radboud University, (Nijmegen 2010), p Home Office (London 2001); cited in Ryan, Centre for Migration Law, 2010, p Ibid. 48 Ryan, (Nijmegen 2010). 49 Home Office, Secure Borders: Safe Haven, (London 2012). 27

29 From then on, there was a trend towards greater compulsion in integration policies 50 and as the new integration agenda progressed, the justification for the policy came to focus primarily on the capacity for social and economic participation. In February 2005, the Home Office proposed extending the Life in the UK and language tests to applicants for settlement, including spouses, civil partners, unmarried partners and same sex partners of settled TCNs and British Citizens. 51 The stated justification for this extension was that permanent migrants must be as economically active as possible; put as little burden on the state as possible; and be as socially integrated as possible 52 [emphasis added]. As with naturalisation, applicants for settlement could demonstrate knowledge of both English language and life in the UK by passing either the Life in the UK test or an ESOL level 3 test with citizenship elements. The extension of language and knowledge of life in the UK tests for applicants for settlement were introduced, via the Immigration Rules, without parliamentary debate. 53 The initial proposal 54 was not supported by evidence that such tests aided economic or social integration; indeed they were introduced before the naturalisation requirements had been fully rolled out. 55 ESOL and Knowledge of Life in the UK tests were implemented for settlement in In its recent consultation on family migration, the government proposed imposing separate tests for language and knowledge of life in the UK for applicants for settlement. 56 In effect, this would raise the language requirement to B1 (intermediate level) for all applicants. 57 The stated justification for the change was that some family migrants were being allowed to gain settlement without adequate knowledge of English language. 58 Individual respondents to the Home Office consultation were supportive of the requirement for applicants for settlement being able to understand everyday English (which is how the government, perhaps misleadingly, presented the proposal; see Home Office 2012a). However, legal organisations and women s organisations pointed to the discriminatory effect against migrants from non-english speaking countries or those unable to afford English language classes. 59 The proposal made it through the consultation and from 13 October 2012, all applicants for settlement have to achieve level B1 in speaking and reading. Integration requirements for settlement have been accompanied, perhaps even more controversially, by the introduction of pre-entry language tests (see Chapter 2). Scholten et al 60 trace this development back to the race riots of 2001 and subsequent campaigning by Ann Cryer, the 50 Spencer (Oxford 2011); Ryan (Nijmegen 2010). 51 Home Office, Controlling our borders: making migration work for Britain, (London 2005). 52 Ibid. 53 Ryan (Nijmegen 2010), p Home Office (London 2005) 55 Ryan (Nijmegen 2010). 56 Home Office, Family migration: a consultation, (London 2011). 57 The previous position was that those at the B1 level would take the Life in the UK test, whilst those with poorer language skills could take the ESOL test, following a course of English classes. 58 Policy makers who participated in this study were divided in their view as to the policy s aim. One cited integration as the justification, whilst another said that demonstrably requiring Applicants to demonstrate proficiency in English, as well as knowledge of the UK was a means of making host communities more receptive. 59 Home Office (London 2012a). 60 Scholten, Entzinger, Kofman et al, Integration from abroad? Perception and impacts of pre-entry tests for third country nationals, Workpackage 4, PROSINT (2012). 28

30 former MP for Keighley in West Yorkshire, who was ultimately to present the pre-entry proposal to parliament in Cryer s proposal was supported by other politicians, who drew a link between language and social cohesion, with Lord Rooker, then Home Office Minister suggesting that minority women were isolated by their partners preventing them from learning English and David Blunket calling on Asian families to speak English in the home. 62 The Conservative party also supported the proposal, tying it in with its own proposals for combating forced marriage. 63 Pre-entry tests were originally seen as a sensitive issue, needing public consultation and debate in parliament. 64 In 2007, the government duly consulted, stating the aims of a pre-entry English language requirement as: (i) assisting the spouse s integration into British society at an early age, (ii) improving awareness of the importance of language, and (iii) preparing the spouse for the Knowledge of Life in the UK test, required for settlement, which was introduced earlier in The government relied on the Commission for Coherence and Integration s finding that a common language is fundamental to community cohesion and integration, and evidence from Dustmann and Fabbri 66 that fluency in English improves employment chances and earnings. However, they offered no evidence that pre-entry testing would improve family migrants language skills after arrival in the UK. The majority of respondents to the Home Office consultation were against the pre-entry language requirement (68 out of 101), with opponents feeling that it was 'less discriminatory and more effective for migrants to learn the language once in the country. 67 Despite opposition, the government pressed ahead, introducing a requirement for applicants for spousal, partner or fiancé(e) visas to be able to speak (but not read or write) at level A1. Noting the paucity of English language testing provision in some areas, the government proposed a two-year lead-time for the new proposals. However, the Coalition government, which adopted the proposal upon taking power in 2010, moved the requirement forward, introducing the A1-level speaking test in November This was despite objections: NGOS that believed the test would discriminate against people from non-english language countries and areas where there was poor provision English language courses; and the arguments made by Liberty (having sought legal advice from Matrix Chambers) that the proposal risked breaching family migrants Article 8 ECHR Rights Age requirements Over the past 10 years, all developments regarding age requirements have concerned the minimum age requirement for spousal/partner visas. In 2001, the minimum age requirement for obtaining a 61 Cryer, whose constituency contained a high proportion of families of Bangladeshi and Pakistani origin (Ryan, Nijmegen 2010), drew a link between English language skills on the one hand and social division and forced marriage on the other (Scholten et al, 2012). She saw the pre-entry requirement as a means of helping overcome ghettoisation and underachievement amongst Asian populations. 62 Scholten et al (2012). 63 Green, We can rid Britain of forced marriages, Observer, 12 August 2007, cited by Scholten et al (2012). 64 Scholten et al (2012). 65 Home Office, Marriage Visas: pre-entry English requirement for spouses a consultation, (London 2007). 66 Dustmann and Fabbri, Language Proficiency and Labour Market Performance of Immigrants in the UK, Economic Journal 113 (2003) p Scholten et al (2012) p Scholten et al (2012). 29

31 spousal visa was 16; the same as for legal marriage in the UK. 69 At that time, there was no minimum age requirement for fiancé(e)s or unmarried partners, although a minimum requirement of 16 was proposed in On 1 April 2003, the minimum age requirement for applicants for spousal visas was raised from 16 to 18, and in 2004, the minimum age for sponsors was raised in line with this. In 2008, the minimum age for visas for spouses, civil partners, fiancé(e)s and proposed civil partners was raised again; this time to 21. However, in 2011, following successful legal action, the age requirement was lowered to 18 once more. Scholten et al (2011) argue that increased age requirements for spouses, partners and fiancé(e)s originated in political discourse, not public debate, tracing them back to Ann Cryer s campaign against forced marriage in the wake of the Bradford race riots. The first indication that the government would link age requirements to forced marriage came in 2001, in its justification for imposing a minimum age requirement for fiancé(e) visas. In the context of a discussion about forced marriage, it was proposed that imposing this age requirement would ensure that individuals had an understanding of the full implications of what they [were] doing and were capable of making informed decisions about their own future. 70 No evidence was offered for this proposition. From 2003 onwards, the government began a programme of raising the minimum age requirements for partner visas, and linking age to the issue of forced marriage. 71 There was little public consultation or debate on this increase and no legal challenges were launched. 72 The government offered no evidence in support of the policy change. It was only afterwards, in 2004, that the Home Office commissioned research, asking the University of Bristol, in what was to be the first UK-based study on the impact of age requirements on forced marriage, to examine the impact of the policy change. No quantitative data was used in the study, but the overwhelming majority (88%) of key individuals interviewed, (including NGOs, other stakeholders, and survivors of forced marriage) felt that the risks outweighed the benefits. Some survivors believed that 18 year-olds, with the benefit of greater maturity, access to education and financial independence would be in a stronger position to resist forced marriage. However, the majority pointed to the risk of young people being taken abroad to marry and being kept there forcibly until they were old enough to sponsor their spouses, people entering the UK with false documentation, and adverse implications for mental health, especially attempted suicide and harm 73. Despite the findings of the Bristol research, the Home Office went on to propose a further increase in the age requirement for visas for spousal/partner visas. 74 In a consultation paper launched in 2007, 75 the government defended the proposed increase on the basis that it would (a) allow individuals to develop maturity and life skills that would allow them to resist the pressure of being forced into marriage; (b) provide an opportunity to complete education and training [presumably in relation to forced marriage; otherwise this is a somewhat bizarre justification]; (c) delay sponsorship and therefore time spent with (sometimes abusive) spouses if the sponsor returns to the UK; and (d) 69 Macdonald and Webber (London 2001), p Home Office (London 2002). 71 Home Office (London 2008). 72 Lord Brown, R (on the Application of Quila) v. Secretary of State for the Home Department [2011] UKSC Home Affairs Committee (London 2008). 74 Home Office (London 2008). 75 Home Office (London 2007). 30

32 allow the victim an opportunity to seek advice before sponsorship and extra time to make a decision about whether to sponsor. 76 No evidence was offered for these propositions. Responses to the 2007 consultation were relatively evenly split with 45 out of 89 respondents in favour of an increased age limit. 77 Supporters mirrored the government s justifications. Opponents felt that it could be perceived as discrimination based on cultural differences, was detrimental to the rights of young people, would not prevent forced marriage, since this affects people of all ages, and would penalise those with genuine marriage intentions. 78 Southall Black Sisters mirrored the concerns of respondents to the Bristol study, saying that it would simply push forced marriage abroad, and result in vulnerable young people being taken out of the country. The organisation Liberty described the measure as a blanket ban that would discriminate against the vast majority for whom coercion plays no part in their decision. 79 In a separate review, the Home Office Affairs Select committee evaluated the evidence base for the impact of increased age requirements on forced marriage. It concluded that there was insufficient evidence for its effectiveness and said that given the potential risks involved the government must ensure that any changes it proposes are based on further research and conclusive evidence as to the effect of those changes. 80 Whilst acknowledging the Home Affairs Select Committee s concerns, the government went on to increase the age requirement regardless. It did not produce fresh evidence as suggested, but justified the increase by reference to the proportion of marriages involving parties aged under 21, saying that between 2005 and 2008, 10% of cases dealt with by the Forced Marriage Unit concerned those aged 18, 9.5% concerned those aged both 17 and 19, and 8.5% concerned those aged Yeo 82 labelled these statistics appallingly flawed, highlighting the small sample size, lack of consideration of differences in marriage age patterns across different communities, and the fact that UKBA statistics indicated that the previous increase in the minimum age requirement had no impact whatsoever. In 2009, a legal challenge was mounted against the increased age requirement for spousal visas. In 2011, the Supreme Court in Quila 83 concluded that the age requirement violated the appellants right to family life under Article 8 ECHR. Following the ruling in Quila, the coalition government lowered the age requirement to 18. From the above, it is apparent that despite the government s stated aim of preventing forced marriage, the evidence for the effectiveness of increasing the age requirement for spousal visas was, at best, highly debatable. Given this, commentators have questioned the government s real aims. 84 In its 2007 consultation paper, the Home Office said: *w+e need to be seen to be doing something because other countries have acted *on the issue of forced marriage+. 85 It may be that this was its 76 Ibid. 77 Scholten et al (2012). 78 Home Office (London 2008). 79 Liberty, Liberty s response to the Home Office consultations (London 2008). 80 Home Affairs Committee (London 2008). 81 Home Office (London 2008). 82 Yeo, Raising the spouse visa age, 23 Immigration Asylum and Nationality Law 4 (2009), p , p R (on the application of Quila) v. Secretary of State for the Home Department [2011] UKSC Yeo, Immigration, Nationality and Asylum Law, 2009; Scholten et al (2011). 85 Home Office (London 2007). 31

33 motivation. Alternatively, it may simply be part of the raft of increasingly restrictive policies described by Spencer 86. NGO representatives who participated in the primary research suggest that it was a cynical attempt to cut net migration. Blinder and Scholten et al 87 both suggest that this is the reason for the coalition government s continued support of the policy. 3.3 The government s definition of integration In the United Kingdom there is no official definition of integration, nor has there been over the course of the past 10 years. Home Office policy makers who participated in this study confirmed the lack of any national definition. Spencer notes that, in addition, there is no national policy framework for integration [of family migrants to the United Kingdom] and no consensus on what the goals of such a policy might be. 88 Despite the lack of any explicit statement of the meaning of integration or any clear idea of its goals, integration has consistently featured as a purported aim for family migration policies over the past decade. The language used in the 2002 policy paper Secure Borders, Safe Haven suggests that at that point integration was viewed as being (at least to some extent) a bilateral process, involving investment from both the host community and migrants. In his Forward, David Blunkett MP described successful immigration as a two-way street, requiring commitment and action from the host community, asylum seekers and long-term migrants alike (Home Office, 2002: Forward). Later policy papers and policy developments suggest an increasingly unilateral interpretation of integration. Spencer identifies a tension between, on the one hand, a lack of provision to help migrants integrate and, on the other, increasingly restrictive integration requirements. She notes that unlike in other European countries, the government has not identified new arrivals as a priority for information or advice services. This is despite the fact that *e+vidence suggests they may nevertheless have immediate needs for support in order to secure work and accommodation or access to services unfamiliar to them Conclusions Over the past ten years, increasingly restrictive policies have been introduced for applicants for family reunification in the UK. These have primarily affected the TCN family members of settled TCNs and British Citizens. The main justification for income and housing requirements for family migrants has been that they reduce the burden on the taxpayer. Integration requirements have variously been justified on the grounds that they will aid integration (a concept never defined by the Home Office), promote economic participation, aid societal cohesion, and make host communities more receptive to family migrants. Age requirements have been justified by reference to the issue of forced marriage. Commentators have, at times, doubted the official justifications for policy 86 Spencer, Policy Primer: Integration, Migration Observatory (Oxford 2011). 87 Blinder (Oxford 2012); and Scholten et al (2012). 88 Spencer (Oxford 2011). 89 Spencer (Oxford 2011). 32

34 developments in each of these fields. They have suggested that a fear of appearing soft on immigration, public opposition to immigration and concerns about social cohesion were influential in the development of Labour s immigration policy. As regards policy developments under the Coalition government, commentators have suggested that the dominant driver for increasingly restrictive requirements is the pledge to reduce net migration to tens of thousands. 33

35 CHAPTER 4: ADMINISTRATION This chapter describes the way in which family reunification rules are implemented in the UK. It begins by outlining the personnel responsible for designing and implementing family reunification rules, and the procedure for applying for family reunification. It then describes the judicial system for reviewing family reunification decisions that is in place in the UK. 4.1 Administrative practices for implementing family reunification legislation in the UK In the UK, responsibility for family reunification rests largely with the Home Office. The Secretary of State for the Home Department (SSHD), who is head of the Home Office, has ultimate responsibility and control. However, it is the UK Border Agency (UKBA), a government agency that sits within the Home Office, which, in practice, is charged with the administration of family reunification. Within the UKBA, a team of immigration officers is responsible for making initial decisions as to whether migrants should be granted leave to remain. Other government departments also have responsibility for elements of family reunification and for the integration of migrants into the UK. Some Entry Clearance Officers sit within the Foreign and Commonwealth Office and the Ministry of Justice is responsible for appointing First and Upper Tier Tribunal judges who hear immigration appeals. Alongside the UKBA and the entry clearance officers of the Foreign and Commonwealth Office, a number of other officials and organisations, both public and private, play a role in family reunification. These include the police, airlines, and marriage and civil partnership registrars. 90 The roles of key personnel involved in family reunification in the UK are explained in greater detail below The Secretary of State for the Home Department The Secretary of State for the Home Department has a number of important functions relating to family reunification. First, she is responsible for issuing the Immigration Rules, which (as explained above) set out the conditions that non-eea nationals without the right of abode must meet in order to enter or remain in the UK under the family migration route. Second, she has the power to grant leave to enter or remain in the UK, to vary leave to remain and to make decisions to deport individuals from the UK. In practice, other officials within the Home Office, including UKBA immigration officers, carry out many of the Secretary of State s family reunification functions. However, she normally signs deportation orders in person and must make certain decisions, for example those relating to expulsion on the ground of national security, herself. There are a number of limits on the Secretary of State s powers to make immigration decisions. Her decisions are susceptible to judicial review by the courts and she must carry out her functions in accordance with principles of administrative law. This means that she must act in accordance with the rules of natural justice. Further, she must not do anything that breaches individual human rights 90 Macdonald and Webber (London 2010). 34

36 or discriminates on unlawful grounds. Just like immigration officers, when making decisions on issues that fall within the Immigration Rules, the Secretary of State must act in compliance with those rules. However, she does have the discretion to make decisions that are more favourable to immigrants The UKBA and Immigration Officers In relation to family reunification, the UKBA s most important function lies in taking decisions on whether to grant leave to enter or remain. UKBA immigration officers are responsible for examining all those who arrive in this country and taking the initial decision as to whether to grant, refuse, cancel or suspend leave to enter. However, in practice, now that all non-eu national family migrants must obtain a visa before coming to the UK, immigration officers function of granting leave to enter has been reduced. Under the new system it is often Entry Clearance Officers, who sit within the Foreign Office, and occupy overseas posts, who generally take the decision to grant leave to enter the UK. In addition to making decisions on leave to enter the UK, UKBA Immigration Officers are responsible for taking decisions on whether to grant, vary or extend leave to remain in the UK. As civil servants, they can also be asked to take decisions on behalf of the Secretary of State, including decisions to deport. As with the Secretary of State, there are limits on Immigration Officers powers to take immigration decisions. They too must comply with the Immigration Rules, as well as any instructions given to them by the Secretary of State for the Home Department (provided that they do not conflict with the Immigration Rules). Immigration Officers are under a duty to act fairly and honestly in all dealings with would-be migrants. 91 This means that, in theory, Applicants and Sponsors should be given a reasonable opportunity to satisfy immigration officers that they meet the conditions for family reunification and to explain any factors that raise immigration officers suspicions. The requirement to act fairly and honestly entails a limited duty on immigration officers to conduct investigations, rather than merely evaluating the information provided to them by migrants. In R v Secretary of State for the Home Department ex parte Raminal, 92 an immigration officer was found to have acted unreasonably in failing to make a simple internal inquiry that would have revealed a Home Office report that the particular marriage was genuine. 93 Despite the duty to act honestly and fairly, the duty on immigration officials to conduct their own investigations in support of applications for family reunification is very limited. The traditional position, set out in Ex parte Safira Begum, 94 according to which immigration officers could merely stand at their bench and wait for intending entrants to say what they had to say, continues to hold sway. This means that Applicants and Sponsors carry the burden of establishing that they meet the requirements for family reunification, even if immigration officials are in a better position than they are to gather the requisite evidence. 91 Re HK (infant) [1967] 2 QB R v. Secretary of State for the Home Department ex parte Raminal [1983] LS Gaz R 30, DC. 93 Macdonald and Webber (London 2010), para R v. Secretary of State for the Home Department, ex parte Begum (Safira) [1976] QB

37 4.1.3 Entry Clearance Officers Generally those without the right of abode in the UK must apply for a visa in their country of origin before coming to the UK under the family migration route. Posted in overseas countries, Entry Clearance Officers are responsible for issuing these visas and, increasingly, for taking the decision on whether migrants meet the conditions for being granted leave to enter the UK. Some Entry Clearance Officers sit within the Foreign and Commonwealth Office. However, many are seconded from UKBA, and in 1999 a Joint Entry Clearance Office (JECO) was set up to ensure coordination between Entry Clearance Officers and the Home Office. The JECO s objective was to regulate entry to and settlement in the UK effectively in the interests of sustainable growth and social inclusion. 95 Like immigration officers, Entry Clearance Officers are also under an obligation to comply with the Immigration Rules and not do anything that constitutes a breach of human rights or unlawful discrimination. They are also bound by the obligation to act fairly and honestly in relation to any family reunification applications. However, recent reports by the Chief Inspector of the UKBA have highlighted a number of deficiencies in the decision-making of Entry Clearance Officers. These include failing to clearly indicate what evidence is required for a successful application, overlooking relevant evidence submitted with applications and, in certain instances, applying higher evidential requirements for applicants from some states (e.g. Pakistan) than to applicants from others Marriage registrars In the UK, marriage and civil partnership registrars play a role in policing family reunification. Section 24 of the Immigration and Asylum Act 1999 places them under a duty to report any suspicion, held on reasonable grounds, that a marriage or civil partnership is, or will be, a sham. A sham marriage is defined as one involving a TCN, which is entered into for the purpose of avoiding the effect of UK immigration law. Registrars have the power to require evidence from persons seeking to marry that they are in a genuine relationship Police The UK police play a role in policing family reunification in the UK. They have the power to arrest suspected overstayers, illegal entrants and absconders for the purpose of administrative detention.in addition to their traditional policing role, the police regulate family reunification in other ways. They are sometimes used to collect information about the home circumstances of those wishing to bring family members into the UK, or to serve notice of decisions to deport. 95 Macdonald and Webber (London 2010), para (last visited on 8 January 2013). 36

38 4.1.6 Airline providers and other carriers The Immigration Act 1971 and the Immigration and Asylum Act 1999 imposes a range of duties on airlines and other carriers, aimed at preventing those without valid visas from entering the UK and deporting those who are refused leave to enter the UK. Airlines must pay for the first 14 days of detention for those refused leave to enter the UK and are often required to bear the cost of returning them to their country of origin, which encourages airlines to play a policing role in the family reunification system, and to quickly return those who are refused permission to enter the UK Procedure for applying for leave to enter or remain in the UK TCN family members of settled TCNs and UK nationals The application procedure differs between applications for leave to enter the UK and applications for leave to remain in the UK. There are also minor differences in procedure between the different routes of family reunification (e.g. for spouses/civil partners and for children). Leave to enter Applicants for leave to enter the UK under the family migration route are required to obtain a visa before entry to the UK. Depending on the country in which they live, this is either done online or using an application form. 97 Visa applications are subject to substantial fees. Applicants for entry as a child, spouse/civil partner, fiancé(e)/proposed civil partner, or unmarried or same-sex partner must pay 826. The visa application is processed by an Entry Clearance Officer, who is posted overseas. Times for processing applications vary by country of origin, and in any event, are not guaranteed. Appeals against Entry Clearance Officer decisions can be brought by the sponsor before a tribunal in the UK. As set out above, in addition to processing the visa application, the Entry Clearance Officer will also generally make the decision as to whether an Applicant should be granted leave to enter the UK. However, Applicants who are successful in gaining a visa will generally also be interviewed by a UKBA Immigration Officer upon arrival in the UK. As discussed above, Immigration Officers have the power to grant, refuse, cancel or suspend leave to enter the UK. Leave to remain Applications to remain in the UK as the family member of a UK national or settled TCN are made by submitting an electronic application form to UKBA. This is followed by sending a print-out of the application, together with supporting documents, by post, courier or in person. As part of the application process, Applicants and Sponsors are required to provide biometric information, including fingerprints and a facial image. In addition, Applicants must pay substantial fees; for example, for Applicants for leave to remain as a spouse/civil partner, the fee is 561. Applicants must apply for leave to remain in the UK before their current leave expires and must be in the UK at the time of making their application. Applicants who are outside the UK at the date on which their 97 There are special requirements for Applicants currently residing in the Channel Islands or the Isle of Mann. 37

39 current leave to remain expires are not able to extend their leave to remain in the UK as a family member. Instead, they must apply for leave to enter, as set out above. Applications are processed by UKBA Immigration Officers, in accordance with the Immigration Rules. There is generally a route of appeal against decisions to refuse leave to remain, which, in the first instance, lies with the First Tier Tribunal (Immigration and Asylum Chamber) TCN family members of Union citizens in the UK TCN family members of Union Citizens who are exercising Treaty rights in the UK fall within the scope of the Immigration (European Economic Area) Regulations 2006, which transpose the Citizen s Directive into UK law. Before coming to the UK as the family member of a Union Citizen, TCN family members must apply for an EEA family permit from the country in which they are residing. In some countries this can be done online, but in others a paper form is required. In theory, TCN family members should not be required to obtain a visa before travelling to the UK. This has been stated in decisions of the CJEU and is reflected in Regulation 11(4) of the Immigration (EEA) Regulations 2006, which prevents immigration officers from refusing entry to the family members of an EU national without providing them with the opportunity to prove that s/he is a family member. However, the AIRE Centre has found that, owing to the legal and financial responsibilities outlined in paragraph 4.1 above, airline carriers are reluctant to carry TCN passengers who do not have a family permit. Consequently, in practice family permits are necessary. On arrival in the UK, TCN family members of Union Citizens must apply for an EEA2 residence permit. Applications are made to the UKBA and Applicants are required to provide valid passports, as well as a range of evidence establishing the family relationship, the nationality of the parties and the Union Citizen s right to reside in the UK. On receipt of an EEA2 application, the UKBA must immediately send a certificate of application and then has six months to process the application. However, it is common for UKBA to miss this deadline, leaving applicants without either a passport or the means of satisfying potential employers that they have the right to work in the UK. 4.3 Judicial System and Legal Aid Judicial System The UK does not have a single unified judicial system; its courts are separated into three separate jurisdictions, the Courts of England and Wales, the Courts of Scotland, and the Courts of Northern Ireland. However, immigration law throughout the UK is covered by the jurisdiction of the Immigration and Asylum Tribunal and the Special Immigration Appeals Commission. The latter is beyond the scope of this report. Tribunals are specialist judicial bodies which decide disputes in a particular area of law. The First tier Tribunal has a wide range of subject-matter, mainly involving appeals from government 38

40 departments or other public bodies. The Upper Tribunal hears appeals from the First-tier Tribunal on questions of law, decides certain cases which do not go through the First-tier Tribunal, exercises powers of judicial review in certain circumstances and enforces decisions made by the First-tier Tribunal. Appeals are heard by one or more judges who are sometimes accompanied by non-legal members of the Tribunal. Judges and non-legal members are appointed by the Lord Chancellor and together form an independent judicial body. Matters arising in relation to family reunification are normally dealt with, in the first instance, at the First-tier Tribunal (Immigration and Asylum Chamber), an independent Tribunal dealing with appeals against decisions made by the Home Secretary and her officials in immigration, asylum and nationality matters. This Tribunal primarily deals with appeals of a decision to refuse a person asylum in the UK, a decision to refuse entry to, or leave to remain in the UK, and a decision to deport someone already in the UK Legal Aid The recently introduced Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012 introduced a number of changes to the administration of legal aid in the UK. The Ministry of Justice have stated that this was in order to prioritise limited financial resources to target legal aid to those who need it most and for the most serious cases. 98 The Act has the effect of removing all immigration matters from the scope of legal aid, with the exception of asylum and detention. In calculating eligibility for legal aid (for example in relation to asylum or detention matters), the Legal Services Commission (LSC) will look at both disposable income (money left over after paying allowable living expenses) and disposable capital (money, investments or property that you could use or sell to pay for legal help). A partner s disposable income and capital will be taken into account provided that the relationship has not ended, and the partner is not an opponent in the case. People with a gross monthly income (income before tax) of more than 2,657 in the last month, or more than 8,000 disposable capital are not eligible for legal aid. 99 If a person s finances are below this level, then the LSC will still examine the case, before determining financial eligibility. If a person does receive legal aid, they may still have to contribute to their costs depending on their financial situation Legal Advice NGO representatives in the primary research commented on the proposed legal aid cuts, noting that this would restrict legal advice on immigration law to those who could afford it. Moreover, they stated that often migrants do not know where to turn for advice if they cannot afford to pay. Since 2010, the two largest UK legal advice centres have closed - Refugee and Migrant Justice and the Immigration Advisory Service, reportedly leaving tens of thousands of people without access to 98 Website of the Ministry of Justice, (last visited on 8 January 2013). 99 A higher gross income limit applies to families with more than four dependent children, allowing an extra 222 for the 5 th and each additional child. 39

41 legal advice. 100 An open letter to The Guardian, with many IAS staff among the 94 signatories, claimed that the legal aid cuts will deny some 600,000 people a year access to the courts Conclusion The primary research suggests that there is a significant gap between the way that immigration law (and in particular the rules that apply to settled TCNs, refugees, asylum seekers and UK nationals) is meant to work and the way that it operates in practice in the UK. An accurate assessment of the effect that the legal aid cuts will have is beyond the scope of this report. However, suffice it to say that since the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012 was introduced, many people will be unable to access legal advice on matters relating to immigration. Lack of knowledge on the part of migrants, and lack of capacity on the part of remaining Legal Advice Centres mean that it will become increasingly difficult to access legal advice for migrants that cannot afford to instruct solicitors. 100 Jon Robbins, Legal aid cuts to immigration could mean 'injustice, hardship and even loss of life', 15 July 2011 (last visited on 15 January 2013); Owen Bowcott, Tens of thousands lose support as Immigration Advisory Service closes, July 2011 (last visited on 15 January 2013). 101 Legal aid cuts leave migrants and asylum seekers vulnerable, Letters, The Guardian, 15 July

42 CHAPTER 5: CASE LAW This chapter presents relevant national, CJEU (Court of Justice of the European Union) and ECHR (European Convention on Human Rights) case law concerning the requirements for family reunification for different categories of migrant, and considers the extent to which national law complies with obligations under EU and ECHR law. Given the breadth of case law in the UK our analysis is limited to a selection of key cases. 5.1 Third Country National Sponsors This section refers to: family members of settled TCNs under the family migration route; PBS migrants; and refugees and those with subsidiary humanitarian protection; Case Law Obstacles to residence: In relation to the Secretary of State s power to amend the Immigration rules, in R (on the application of Alvi) v. SSHD, the Supreme Court confirmed that when people are applying for leave to remain under the Immigration Rules, the Home Office cannot impose increased requirements on them in guidance, as any requirement that might result in someone being refused is a rule that must be placed before Parliament. Fees: The case of O Donoghue v. UK 102 concerned the impediments to contracting a marriage (and thus forming a de iure family) that were imposed by the UK s Certificate of Approval ( CoA ) scheme. The scheme required foreigners, except those wishing to marry in the Church of England, to pay large fees to obtain this permission from the Home Office to marry. The fees were payable over and above the even larger fees payable if people wished to apply to change their immigration status after marriage. 103 The Court found that the scheme was not rationally connected to the stated aim of reducing the incidence of sham marriages, since when deciding whether to issue the required certificates no enquiries were made to establish the genuineness of the marriage. The determinative test was only the immigration status of the individual applicant. The Court found that the scheme violated Article 12 and it was also held to be discriminatory on the ground of religion. The Court also found that the fees charged for CoA s were excessively high and did not provide for a waiver or reduction for needy 102 O'Donoghue and Others v. United Kingdom, Application No /07, ECHR Judgment of 14 July In the UK, for historical reasons, everyone - whether Christian or not - has the right to marry in the Church of England, specifically in church of the parish where they reside. Marriages in the Church of England have automatic civil validity. In the UK marriages celebrated not only in the Church of England but also in e.g. Catholic Churches, synagogues and designated mosques have civil validity without the need for a separate civil ceremony. The scheme applied to civil ceremonies, but also to Catholic, Jewish, Hindu and Muslim marriages. Only those celebrated in the Church of England were excused from the CoA requirement. 41

43 persons. 104 The refusal of a certificate could not be challenged on the basis that it was unreasonable to expect the couple to pay the fees. Article 13 was found not to be engaged. Refusal to regularise status: The refusal to regularise the situation of a foreign spouse has been upheld by the European Court of Human Rights (ECtHR) even where this would mean the constructive exile of child family members who are citizens of the contracting state. Several of these have involved the UK, which is not a party to the Fourth Protocol to the ECtHR, which prohibits the exclusion of a country s own nationals (Article 3). 105 Accommodation Requirements: In Mahad/AM (Ethiopia and others) (2009), the Supreme Court, confirming earlier tribunal cases, held that the accommodation requirement for family members of settled TCNs can be met by accommodation provided by third parties. The only requirement is that either the Sponsor or the third party owns or exclusively occupies the part of the accommodation in which the Applicant is to live. However, this case concerned accommodation requirements before the Immigration Rules were changed in July Following the amendments, it is likely that this will no longer be the case. Bah v. UK 106 concerned access to housing assistance. In that case a mother and her 14 year old son alleged that their denial of access to priority need housing was discriminatory. The ECtHR found that there was nothing arbitrary in the denial of a claim of priority need based solely on the presence of her son, as he had only recently been admitted from abroad for family reunion and was subject to an immigration condition that he should not have recourse to public funds. The Court held that his mother accepted this condition when she brought her son into the UK aware of the fact his immigration status included the requirement of no recourse to public funds. The legislation at issue in this case pursued a legitimate aim, namely allocating a scarce resource fairly between different categories of claimants. 107 Income Requirements: In KA & Others (Pakistan) (2006), the First-tier Tribunal held that the level of income required to establish adequate maintenance without recourse to public funds was the minimum income below which the Sponsor and family member(s) would be eligible for income support. Again this concerns the Immigration Rules as they applied before 9 July As yet there are no cases on the new income threshold. The Supreme Court case Mahad/AM (Ethiopia and others) (2009) established that third party support could be counted and that Applicants granted leave to enter as spouses or partners could rely on their prospective earnings (based on actual or likely job offers) in the UK to establish that the income requirement was met. Fiancé(e)s could not do so because they were prohibited from working during the six month probationary period before marriage. 104 Fees were also mentioned in Quila v. SSHD, in which Lady Hale noted that the blanket ban at issue in that case imposes the similar deterrent effect between a delay on cohabitation in the place of their choice which may act as at least as severe a deterrent as a large fee. 105 See for example, Sorabjee v. United Kingdom, ECtHR Application No /94, 23 October Bah v. the United Kingdom, ECtHR Application No /07, 27 September 2011, para It is important to note that the applicants in the Bah case were not left destitute and alternative housing was available to them. 42

44 Age Requirements: In 2008, the minimum age requirement for Sponsors and Applicants for spousal visas rose from 18 to 21. In R (on the application of Quila and another) v. SSHD 108 this was challenged. The Supreme Court held that the Secretary of State had failed to establish that the interference with the rights of the respondents under Article 8 that had been caused by the rule was justified. The Court held that while the law may have been adopted to pursue the legitimate aim of deterring forced marriages, as the Secretary of State had failed to produce evidence that it would have any substantial deterrent effect, the interference with Article 8 was unjustified. Language Requirements: In Chapti & Others. V. SSHD, the applicants challenged amendments to the Immigration Rules introduced in October 2010 that required foreign spouses and partners of British citizens or settled TCNs to produce a test certificate of knowledge of English to a prescribed standard. The High Court found that the new language requirement did not violate Article 12 ECHR taken with Article 8. Whilst Article 8 was engaged, the operation of the Rule is not a disproportionate interference with family life, and is both justified and rationally connected to the legitimate aims of promoting integration and protecting public services both of which were accepted as falling within Article 8(2). Further, the rule did not give rise to a breach of Article 14. Leave to appeal was granted and the case is pending. Refusal to regularise status and deportation: The right to respect for private and family life under Article 8 ECHR has sparked significant case law before the ECtHR relating to the refusal of states to admit or regularise the spouses (or other family members) of their own citizens or of settled migrants, and/or their deportation. The refusal to regularise the situation of a foreign spouse has been upheld by the Court, even if this may lead to the de facto exile of child family members who are citizens of the contracting state. Sorabjee v. UK involved the deportation of the applicant s mother to Kenya. The Court found no violation, holding that since the applicant was three years old, she was of an age at which she could move with her mother and be expected to adapt to the change. Where lawfully resident TCNs have committed criminal offences, a state may wish to deport them. In AA v. UK, 109 the applicant, a Nigerian national, had arrived in the UK in 2000 to join his mother. In 2002 at the age of 15 he was convicted of a serious criminal offence, released in 2004 and subsequently completed his studies and commenced employment. The Court found that expulsion following a criminal conviction as a minor followed by exemplary rehabilitation would constitute a violation of the Convention. The ECtHR often deals with cases involving the expulsion of those who have resided for many years in the host state and the expulsion therefore also raises private life issues in addition to family life issues. In Omojudi v. UK, the Court stated, Article 8 also protects the right to establish and develop relationships with other human beings and the outside world and can sometimes embrace aspects of an individual's social identity, it must be accepted that the totality of social ties between settled 108 Joined with R (on the application of Bibi and another) v. Secretary of State for the Home Department [2011] UKSC AA v. United Kingdom, ECtHR Application No. 8000/08, 20 September

45 migrants and the community in which they are living constitutes part of the concept of private life within the meaning of Article This is regardless of the existence or otherwise of a family life UK Compliance with EU/ECHR obligations The current legislation has only been in force since 9 July 2012 and as such, has not been tested before the ECtHR. In relation to Turkish nationals applying under the Ankara Agreement and Protocol, the standstill clause should be applied (see Chapter 2). The UK has not opted into the Family Reunification Directive and therefore related case law is not discussed here. 5.2 European Union Citizen Sponsors There are a number of contentious areas regarding family reunification for TCN family members of Union citizens. These have been the subject of case law in the UK and of references to the CJEU. Case law concerning these contentious areas is explored below Case Law Meaning of spouse : The Upper Tribunal in NA (Customary Marriage and Divorce evidence) Ghana [2009] 111 accepted the Commission s view that marriages validly contracted anywhere in the world must be in principle recognised for the purpose of the application of the Directive. The implication of this finding is that, contrary to the position of spouses of TCNs and UK nationals, there is no age requirement for spouses of EEA nationals exercising free movement rights. The relationship between spouses continues to be recognised for the purpose of the Citizens Directive even when the marriage has broken down, so long as it has not been legally dissolved. 112 This gives spouses of Union Citizens a significant advantage vis-à-vis spouses of TCN migrants and UK nationals under domestic law. Facilitating the entry of other family members : To comply with the facilitation requirements of Article 3(2) of Directive 2004/38, Member States have to confer a certain advantage on family members falling within the scope of the provision. They may however impose requirements relating to the nature and duration of the dependence. 113 Prior lawful residence: The UK attempted to impose a condition of prior lawful residence on the TCN family members of Union Citizens before they could reside in the UK. Regulation 12 of the EEA Regulations 2006 made the grant of a European family permit dependent on the family member having lawfully resided in another member state with their EEA national family member. In the 2008 case of Metock v. Minister for Justice, Equality and Law Reform 114 the CJEU ruled that a similar provision in Irish law was unlawful and was not part of the qualifying requirements in the Citizens 110 Omojudi v. The United Kingdom, ECtHR Application No. 1820/08, 24 November 2009, para NA (Customary marriage and divorce, evidence) Ghana [2009] UKAIT See Case C-267/83, Aissatou Diatta v. Land Berlin. 113 Case C-83/11, Rahman v. SSHD. 114 Case C-127/08 Metock v. Minister for Justice, Equality and Law Reform. 44

46 Directive. As a result, the UK amended Regulation 12 to remove this prior-residence condition. Whether a requirement of prior residence applies to extended family members is currently the subject of a reference to the CJEU by the Upper Tribunal (Immigration and Asylum Chamber) for a preliminary ruling. 115 Other family members of a Union Citizen who have duly demonstrated their situation of dependence on that citizen cannot be excluded from the scope of Article 3(2) of the Directive solely because they have not resided in the same State as that citizen. 116 Primary carers of children: The primary carers of certain children derive residence rights in the UK under EU law. In Echternach & Moritz 117 the CJEU recognised that the right of children of EU migrant workers to take up education in the host Member State under the same conditions as host Member State nationals, extends to the right to remain to finish their education, even if the EU migrantworker parent stops working and/or leaves the host State. It was subsequently established in Baumbast and R 118 that the primary carer of such children is permitted to remain in the UK. The cases of Teixeira 119 and Ibrahim 120 followed, establishing that the primary carer is entitled to the same social support as a British citizen. The nationality of both the child and primary carer are irrelevant, as long as the worker-parent is/was an EEA national. In SSWP v. JS 121 the Upper Tribunal (Administrative Appeals Chamber) confirmed that the same parent can be the EU migrant worker and the primary carer afterwards, and that A8 nationals working whilst registered under the Worker Registration Scheme are considered EU migrant workers for the purposes of this rule. In England, education begins when the child begins general compulsory education, around the age of five. 122 There are currently several cases pending before the CJEU in relation to: when education ends; 123 whether the Teixeira/Ibrahim rule applies to self-employed parents, and as to whether there necessarily has to be an overlap between the time when the parent is in work/self-employment and the child is in education or if the rule still works if the child starts education after the parent stops working. 124 Chen and Zhu v. SSHD 125 concerned a child who had Irish nationality by virtue of being born in Northern Ireland. In that case the Court of Justice held that the child was entitled to exercise a right to reside in the UK as a self-sufficient person and that in order to make that right effective, entitled to be joined in the UK by her TCN primary carer. When implementing the Chen judgment, the UK prohibited such a primary carer from working and required him/her to have comprehensive sickness insurance. The Court of Appeal confirmed in W(China) and X (China) v SSHD 126 that this transposition is adequate. The European Commission has communicated its disagreement with this position in a letter of formal notice, a precursor to formal infringement proceedings under Article 258 TFEU. 115 See Case C-83/11 Rahman v. SSHD. 116 Ibid. 117 Joined Cases of C-389/87 and C-390/87, Echternach v. Moritz v. Minister van Onderwijs en Wetenschappen. 118 Case C-413/99 Baumbast and R v. Secretary of State for the Home Department. 119 Case C-480/08, Maria Teixeira v. London Borough of Lambeth and Secretary of State for the Home Department. 120 Case C-310/08, London Borough of Harrow v. Nimco Hassan Ibrahim and Secretary of State for the Home Department. 121 JP v. SSWP UKUT 347 (AAC). 122 See SSWP v. IM [2011] UKUT 231 (AAC). 123 See Alarape & Anor,Nigeria [2011] UKUT 413 (IAC). 124 See Joined Cases C-147 & 148/11, Czop & Punakova (SSWP v MP) [2011] UKUT 109 (AAC). 125 Case C-200/02 Chen and Zhu v. Secretary of State for the Home Department. 126 W(China) and X (China) v. SSHD [2006] EWCA Civ

47 In Zambrano 127 the AG and the Court found that the rights of children, who were citizens of the Union, to live and be maintained in their country of citizenship required their TCN parents to be allowed to remain in the state of their nationality. The decision relied on Article 20(1) TFEU and not on the Citizens Directive, which has been held only to apply to those exercising treaty rights - i.e. those who have moved from their state of nationality. 128 This judgment was clarified in Dereci, 129 in which the Court narrowed the scope of those who could benefit from Zambrano to those for whom refusal of a right to live and work would mean that the Union Citizen would have to leave the EU as a whole, and not only the State of which s/he is a national. The Court left it to the national courts to make that assessment. Lida v. Ulm related to a Japanese citizen who had moved to Germany with his German wife and German daughter. After the couple split, his wife moved with his daughter to Austria. The CJEU found that Directive 2004/38 did not confer on the father the right to remain in Germany, but that the fundamental rights in Articles 6(1) and (3) TEU and Articles 7 and 24 of the Charter of Fundamental Rights (CFR) would grant the right of residence if its denial would have a restrictive effect on the child s right of free movement and must be regarded as constituting a disproportionate interference with fundamental rights in the light of the abovementioned fundamental rights. Following the Zambrano judgment the British government implemented its provisions in November 2012 to cover TCNs on whom a British citizen child or adult is dependent. The Certificate of Application scheme that operated in the interim period and permitted a Zambrano parent to work in the UK while their application was outstanding, is no longer in operation. Surinder Singh principle: Regulation 9 was designed to give effect to the principle laid down in that case, that is, where a Union Citizen who exercised treaty rights returns to his/her country of origin, his/her spouse must enjoy at least the same rights of entry and residence as would be granted to him/her under Community law if s/he chose to enter and reside in another Member State. In OB (EEA Regulations 2006 Article 9(2) Surinder Singh spouse) Morocco 130 the Upper Tribunal was asked to determine the limits of the principle. The case concerned a UK national who had resided in the Republic of Ireland with his TCN spouse as a worker but who had not worked for the 13 months before returning to the UK. The question was whether this 13 month break prevented him from relying on Regulation 9 of the EEA Regulations The Tribunal held that he could rely on Regulation 9 and that to hold otherwise would impede the exercise of Treaty rights and family life. The Tribunal further concluded that other factors, such as periods of unemployment due to illness, pregnancy or child rearing did not break the link between the previous exercise of Treaty rights by way of working and right to re-enter the UK on the basis of EU law. 127 Case C-34/09, Gerardo Ruiz Zambrano v. Office national de l emploi (ONEM) See Case C-434/09 McCarthy (Shirley) v. SSHR. 129 Case C-256/11, Murat Dereci and Others v Bundesministerium für Inneres. 130 OB (EEA Regulations 2006 Article 9(2) Surinder Singh spouse) Morocco [2010] UKUT 420 (IAC). 46

48 Change of circumstance: In Okafor, 131 the Court of Appeal held that where a TCN family member has been issued with an EEA2 residence permit, valid for five years, but the Union Citizen has ceased to exercise free movement rights, the card s existence confers no rights on the TCN family member. Consequently, periods of time spent in the UK in possession of a residence card do not count for the purposes of acquiring permanent residence in the UK unless the Union Citizen was actually exercising free movement rights during those periods. Comprehensive sickness insurance requirements: The Court of Appeal in Lekpo-Bozua 132 held that a French student who had been residing in the UK for five years had not been doing so in accordance with Article 7(1)(c) of the Citizens Directive because he did not have private comprehensive sickness insurance. However, it appears from the judgment that it was conceded that the appellant did not meet the requirements of the Directive, so the point was not fully argued. There is conflicting caselaw on this point; albeit from a lower court and in an obiter dictum: SSWP v. SW [2011], 133 the Upper Tribunal said that, in its view, entitlement to treatment under the NHS would suffice for the comprehensive sickness insurance requirement for self-sufficiency under Article 7(1)(b) of the Citizens Directive. Accommodation Requirements: In SG (Thameside) 134 the Upper Tribunal held that sufficient resources includes accommodation. So, in order for a TCN family member to have the right to reside in the UK as the family member of a self-sufficient person or student, their Union citizen family member must have sufficient resources to cover the means-tested benefit applicable amount plus the amount required for rent. In SG (Thameside) the Tribunal held that the accommodation element of the self-sufficiency requirement can be met by having free and stable accommodation provided by friends and family UK Compliance with EU/ECtHR obligations As Rogers, Scannell and Walsh 135 comment: *t+he domestic courts have not been as assiduous as they should be in identifying the core of EU rights and have too often adopted too narrow an interpretation of EU law. 136 There are a number of areas in which UK law falls short of obligations under EU and ECHR law. Rogers argues that the combination of absolute requirements for qualifying as durable partners namely that the relationship must have lasted at least two years, and that the parties must have lived together in a relationship akin to marriage for that period - is incompatible with EU law. Neither of these requirements appears in the Citizens Directive. In Rogers view: The fundamental rights of the Treaty and the importance of family life in the Charter and [article] 8 ECHR would compel a court to conclude that the absolute nature of the extra requirements are unlawful [emphasis added]. 131 Franklin M.C. Okafor v. Secretary of State for the Home Department [2011] EWCA Civ Lekpo-Bozua v. London Borough of Hackney [2010] EWCA Civ SSWP v. SW [2011] UKUT 508 (AAC). 134 SG (Thameside) Metropolitan Borough Council (HB) [2010] UKUT 243 (AAC). 135 Rogers, Scannell and Walsh (2012), Freedom of Movement in the Enlarged European Union, Second Edition, London: Sweet and Maxwell 136 Ibid. 47

49 Annex A to the UKBA Casework Instructions on registration certificates, states that in order to continue to qualify as the family member of a Union Citizen who is self-sufficient or a student, both the Union Citizen and the family member need to have private sickness insurance. In April 2012, the European Commission launched infringement proceedings against the UK on this point. In its view, public sickness insurance (under which NHS cover falls) is sufficient to meet the requirement for comprehensive sickness insurance. As stated by the European Commission: The United Kingdom does not consider entitlement to treatment by the UK public healthcare scheme (NHS) as sufficient. This breaches EU law [emphasis added]. 137 Infringement proceedings are currently being brought against the UK in relation to the right to reside test. 5.3 UK Nationals If the state s own nationals fall outside the scope of EU law (see Zambrano, Dereci) then only national law applies to their situation and the national law will be measured against the standards of the ECHR. Therefore the case law concerning TCN family members of UK nationals is largely the same as for those of TCN Sponsors, covered above in section Case Law Best interests of the child: ZH (Tanzania) (FC) (Appellant) v. SSHD (Respondent) [2011] 138 concerned the question: In what circumstances is it permissible to remove or deport a non-citizen parent where the effect will be that a child who is a citizen of the United Kingdom will also have to leave? In that case, the Supreme Court held that when making the proportionality assessment under Article 8 ECHR, the best interests of the child must be a primary consideration. This means that they must be considered first, notwithstanding the fact that they can be outweighed by the cumulative effect of other considerations UK Compliance with EU/ECtHR obligations For the purpose of UK compliance with EU/ ECHR obligations, the case law concerning a UK national Sponsor is the same as for a TCN Sponsor. 5.4 Conclusion 137 European Commission Press Release of 26 April 2012, available at: e=en (last visited on 15 January 2013). 138 ZH (Tanzania) v. SSHD [2011] UKSC 4. 48

50 Whereas the focus of the ECtHR is on whether a particular state has overstepped its margin of appreciation in respecting individual rights, the question for the CJEU has been whether a restriction on family migration may discourage EU citizens from exercising their rights to free movement or impede the enjoyment of EU citizenship. Consequently, the parallel development of case law has resulted in the unusual situation whereby many Member States EU nationals exercising Treaty rights now enjoy far greater rights of family reunion than the states own nationals do. However, the above survey of the case law suggests that UK Supreme Court jurisprudence is more favourable to applicants for family reunification in some respects. 139 Finally, it should be noted that in other countries, family reunification of TCN Sponsors is regulated by the Family Reunification Directive. However, the UK has not opted into this Directive; consequently, there is no relevant case law. 139 Ibid.. 49

51 CHAPTER 6: IMPACT OF POLICIES ON FAMILY REUNIFICATION This chapter considers the impact of family reunification legislation and policies on each of the three categories of family migrant (those sponsored by (i) TCNs, (ii) Union citizens, and (iii) UK nationals) to achieve family reunification. 6.1 TCN Family Members of TCN Sponsors This section considers the impact of family reunification legislation and procedures on TCN Sponsors and their TCN family members. Given that the rules for family reunification are the same for UK national Sponsors and their family members as for settled TCN Sponsors, many of the findings are the same for both these groups. Therefore, to avoid repetition, findings common to both groups are presented here. Where there is any difference between the experiences of these groups, it is highlighted in the text below. Findings specific to UK nationals and their family members are set out in section Quantitative analysis This section analyses available data on applications for family reunification and visas granted between 2001 and Data is considered for applications at both the leave to enter/remain stage and the settlement stage. 140 Except for PBS family migrants (who are almost exclusively sponsored by TCNs) the data does not distinguish between migrants sponsored by UK nationals and TCNS. (a) Applications for leave to enter The Home Office immigration statistics provide data on grants of leave to enter the UK for the period Table 1 shows numbers of family route migrants 141 granted leave to enter the UK for this period, broken down by region of origin. Table 1. Grants of Leave to Enter, Family Route Migrants, by nationality ( ) 140 This reflects the two stage application process in place until July This excludes family members of PBS migrants/refugees. 50

52 As indicated by Table 1, the number of family migrants granted leave to enter the UK rose between 2004 and 2006 (from 39,700 to 53,300), fell between 2006 and 2009 (to 36,600), and rose again slightly in 2010 (to 37,300). Data for 2011 is not available. However, from data on the number of Entry Clearance Visas issued between 2005 and 2011, it seems likely that the number of family migrants granted leave to enter fell again in There seems, therefore, to have been a broadly downward trend since Table 1 shows that Asian nationals accounted for by far the largest proportion of family migrants granted leave to enter the UK in each year from 2004 to Numbers of Asian nationals admitted under the family route rose from 21,300 in 2004 to 30,300 in However, after 2007, numbers of Asian nationals admitted as family members began to fall, reaching a low of 19,300 in 2009 before rising slightly again in Using entry data to analyse family migration by relationship type, it is clear that women outnumber men: there are more wives than husbands entering the UK for family reunification and more female fiancées than male fiancés. 144 In 2010, 68% of family migrants admitted as spouses or fiancées were female and this has remained at over 60% every year since There is no available data on the age of family migrants granted leave to enter the UK. However, entry data suggests that children make up an increasing proportion of family migrants (rising from 7% in 1997 to 17% in 2010). The Home Office does not publish data on the number of applications for leave to enter the UK or the proportion of such applications refused. However, an idea of the proportion of applications accepted and refused can be gained by looking at the data on applications for Entry Clearance Visas and their resolution. This data, which only exists for the period , is set out in Table 2, below. This table includes data on family members of PBS migrants. As indicated in Table 2, the number of visa applications issued to TCNs applying under the family route rose from 66,324 in 2005 to a peak of 70,119 in Broadly speaking, numbers of visas issued fell between 2006 and 2011 (with a small rise in 2010), ending at 45,697 in Falls in applications made and visas issued during this period can be contrasted with a rise in the percentage of visa resolutions ending in refusal (from 17% in 2005 to 25% in 2011). The pattern was broadly similar for family members of PBS migrants. The number of visas issued from 28,421 in 2005 to a peak of 42,0888 in 2007, then fell sharply to 17,481 in 2009 and further decreased to 14,146 in The percentage of visas refused in this group remained broadly consistent between 2005 and 2009 (ranging 13% and 14%) but rose to 18% in 2010 and 21% in Applicants from outside the UK need an Entry Clearance Visa in order to be granted leave to enter the UK. Entry clearance visas are normally valid as leave to enter the UK but not all those granted Entry Clearance Visas will be granted leave to enter the UK (either because they do not end up moving to the UK or because they are denied leave to enter despite having entry clearance). From this it can be inferred that a fall in Entry Clearance Visas for family migrants as described in Table 3, below, will be matched by a fall in the number of family migrants granted leave to enter the UK. 143 The percentage of family route migrants granted leave to enter who were from Asia was 53.6% in 2004, 55.9% in 2005, 54.2% in 2006, 57.6% in 2007, 56.2% in 2008, 52.5% in 2009, and 54.2% in Blinder (Oxford 2012), p Ibid. 146 Home Office (2012) Immigration Statistics, March 2012, Table be.04, available at: 51

53 Table 2. Applications for Entry Clearance Visas and their Resolution (2005 to 2011) (b) Applications for Settlement Data on the number of individuals admitted for settlement through the family migration route, by type of family member, is available for the period Data on the nationality of family migrants admitted for settlement is only available for the period Due to the manner of reporting, it was not possible to break down these statistics by age or gender. Further, it was not possible to find data on the numbers of dependents of PBS migrants admitted for settlement. As indicated in Table 3, below, numbers of family migrants admitted for settlement under the family route rose between 2001 and 2003 (from 56,873 to 62,300), before substantially falling in 2004 (to 33,242). 147 Broadly speaking, numbers admitted for settlement rose again between 2005 and There was a substantial increase between 2010 and 2011 (from 69,128 to 141,467). It is possible that this increase is due to family migrants seeking to avoid more arduous requirements for settlement, proposals for which were published by the Home Office in Table 3. Grants of Settlement, Family Route Migrants, by type of family member ( ) 147 Table 3 does not include data for family members of PBS migrants. 52