Discrimination Law Association Response to UK Border Agency Family Migration: A Consultation The Discrimination Law Association (DLA) is a registered charity established to promote good community relations by the advancement of education in the field of anti-discrimination law and practice. It achieves this by, among other things, the promotion and dissemination of advice and information, the development and coordination of contacts with discrimination law practitioners and similar people and organisations in the UK and internationally. The DLA is concerned with achieving an understanding of the needs of victims of discrimination amongst lawyers, law-makers and others and of the necessity for a complainant-centred approach to antidiscrimination law and practice. With this in mind the DLA seeks to secure improvements in discrimination law and practice in the United Kingdom, Europe and at an international level. The DLA's membership includes lawyers, legal and advice workers and other persons, firms or organisations engaged or interested in discrimination law. The DLA welcomes the opportunity to respond to this important consultation in which in a number of contexts views are sought regarding proposals to amend legislation or immigration rules or guidance in relation to entry or settlement of spouses, partners or other family members and the interaction of immigration control with Article 8 of the European Convention on Human Rights (ECHR). We also welcome the statement by the Home Secretary in her Foreword to the consultation that [t]he coalition government has a firm commitment to human rights ; she then refers to the government s establishment of a commission to investigate the creation of a UK Bill of Rights. We were very disappointed, therefore, that in her speech to the Conservative Party Conference on 4 October 2011 she said I can announce today that we will change the immigration rules to ensure that the misinterpretation of Article Eight of the ECHR the right to a family life no longer prevents the deportation of people who shouldn t be here... I will write it into our immigration rules that when foreign nationals are convicted of a criminal offence or breach our immigration laws: when they should be removed, they will be removed. 1 1 http://www.politics.co.uk/comment-analysis/2011/10/04/theresa-may-speech-in-full 1
This consultation specifically asks (questions 34 36 and 40) about the relationship of the qualified rights under Article 8 and the operation of immigration control functions, including deportation of criminal and immigration offenders. The Home Secretary s announcement, before the conclusion of this consultation, inevitably raises questions as to whether the UKBA intends to give proper consideration to the responses it will receive to these and the other consultation questions or whether decisions on all these matters have already been made; we sincerely hope that it is the former and not the latter. We note that in the first paragraph (1.1) of the Executive Summary the focus of the government s present proposals for reform of family migration is on preventing and tackling abuse, promoting integration and reducing burdens on the taxpayer.to deliver better migration, which is fair to applicants, local communities and the taxpayer. In our response below, from which we have drawn on the responses by the Immigration Law Practitioners Association (ILPA), Rights of Women the Migrant Rights Network and the Human Rights Futures Project, which we generally endorse, we have looked at the various proposals to see whether they will in fact tackle abuse, promote integration and/or reduce burdens on taxpayers, and if so whether they will do so in a way which is proportionate and, fair to applicants. We submit that whether a proposal is likely to be fair to applicants needs to be considered in terms of Article 8, and for some questions also Article 12, of the ECHR. We set out our response using the numbers of the consultation questions; we have focused on those questions which are most relevant to the concerns of the DLA. Marriage and Civil and Other Partnership Question 1: Should we seek to define more clearly what constitutes a genuine and continuing relationship, marriage or partnership, for the purposes of the Immigration Rules? If yes, please make suggestions as to how we should do this. The immigration rules currently require applicants seeking to enter the UK to marry, enter into a civil partnership or join their partner to be in a subsisting (continuing) relationship: each of the parties intends to live permanently with the other as his or her spouse or civil partner and the marriage or civil partnership is subsisting 14 The Entry Clearance Guidance confirms that: Intention to live permanently with the other means an intention to live 2
together, evidenced by a clear commitment from both parties that they will live together permanently as husband and wife immediately following the outcome of the application in question or as soon as circumstances permit. 15 Applicants must provide evidence that their relationship is subsisting, this evidence, and the applicant s commitment to their spouse or partner is scrutinised by Entry Clearance Officers. We believe that these requirements offer sufficient protection to the UKBA against applicants who are not in a genuine or subsisting relationship. However, the DLA agrees with many other respondents that it is neither possible nor desirable to attempt to develop a definition or criteria to determine the genuineness of a particular relationship. What constitutes a genuine relationship varies from person to person, generation to generation, culture to culture and religion to religion. Any attempt to reach a definition of what constitutes a genuine relationship will only serve to privilege one particular experience, one particular cultural and temporal construction of a relationship over others which are no less valid. We disagree with the suggestion in the consultation that factors such as whether or not a couple have a difference in their ages, or have eloped, or have few guests at their wedding could be considered reliable indicators as to the genuineness or otherwise of their relationship. We believe that any definition developed along these lines would be potentially discriminatory, either directly or indirectly on the grounds of race, religion or age. We do not believe that any further guidance on this point is needed. Question 2: Would an attachment to the UK requirement, along the lines of the attachment requirement operated in Denmark: support better integration? help safeguard against sham marriage? help safeguard against forced marriage? The DLA submits that UKBA has not provided any evidence that such a test would achieve any of the UKBA s stated aims noted above, namely tackling abuse, 3
promoting integration and reducing burdens on the taxpayer fair to applicants, local communities and the taxpayer. 2 The consultation 3 indicates that the Danish test is not applied to the partners of Danish Citizens. From ILPA we understand that the vast majority of spouse/partner sponsors are British. Therefore, if a test introduced in the UK were based on the Danish model, it would not be applied to the majority of applications made (as it would apply to people resident in the UK but not to UK citizens). The DLA does not agree that a difference in treatment between UK citizens and UK residents in this regard could be objectively justified. We would draw attention to the fact that the UN committee which monitors the International Convention on the Elimination of all forms of Racial Discrimination (ICERD) has repeatedly raised human rights concerns about this model. It has said this model may lead to a situation where persons belonging to other ethnic and national backgrounds other than Danish are discriminated against in the enjoyment of their right to family life, marriage and choice of spouse as protected under ICERD. The DLA submits that to institutionalise differential treatment between UK citizens and UK residents who wish to be joined by their spouse or partner is likely to cause resentment which is more likely to harm than to promote integration. We discuss below under the heading Tackling sham marriage our concerns regarding this and other proposals which impose restrictions on ECHR rights based solely on immigration status. Maintenance and Accommodation Question 3: Should we introduce a minimum income threshold for sponsoring a spouse or partner to come to or remain in the UK? The immigration rules already require that the applicant can be maintained and accommodated without recourse to public funds. The visa or grant of leave to remain will clearly show that a successful applicant does not have recourse to public funds. The effect is that, in order to have a successful application, the applicant must provide evidence that they can be maintained without recourse to public funds and, 2 para 1.1 Executive Summary 3 para 2.15 4
importantly, while present in the United Kingdom during the probationary period, they will not be able to access public funds. The relevant agency will check if recourse is allowed before granting public funds. If any applicant were to rely on public funds (although they should not be granted them), they could be refused indefinite leave (permanent residence) at the end of their probationary period. In order to meet the maintenance requirement, an applicant must show maintenance equal to, or in excess of, the funds available to an equivalent British family relying upon income support. The DLA submits that since (1) the immigration rules already require no recourse, and (2) no recourse is a condition of leave in the United Kingdom, and (3) there is a negative consequence of obtaining public funds, then no change to the current position is required to achieve the aim of reducing the burden to the taxpayer. Additionally, the DLA submits that no change to the level of maintenance should be made to promote integration. If the level of income support is not sufficient for this, it must follow that benefits for British citizens are not set at a reasonable level. If the UKBA, or the government as a whole, does not believe that the income support levels are sufficient for families to be able to live on, they should acknowledge this and take immediate remedial action. Requirements for settlement Question 5: Should we extend the probationary period before spouses and partners can apply for settlement (permanent residence) in the UK from the current 2 years to 5 years?. The consultation provides no evidence to support this proposal. The DLA submits that it would be unfair to add three years for spouses and partners to apply for settlement in the UK. This change would extend the period before families including children could plan their future in security. consideration appears to have been given to the impact of uncertainty about a family s future in the UK on children. This longer period is likely to create additional barriers to accessing employment and loans such as mortgages. It would mean that, if the family experiences job loss, health problems or housing issues during this extended period, the spouse/partner would have only limited recourse to public funds. The DLA is especially concerned for those who are victims of violence within their relationships. Increasing the period before they reach indefinite leave, can increase the period in which they believe they remain under the control of their abusive partners. Rights of Women state that it is their belief that if this proposal is implemented it will result in an increase in the number of domestic violence homicides and suicides amongst this group of women. 5
Tackling Sham Marriage Questions 9 to 17 The DLA shares the concerns of ILPA that UKBA should not put restrictions on marriage which are unlawful. UKBA previously introduced a certificate of approval scheme which applied to individuals who wish to marry, but were not British national, EEA nationals or permanent residents. In the case of Baiai, the scheme was found to be unlawful. It is unlawful to put restrictions on the right to marry solely on the basis of immigration status. The DLA submits that the UKBA must not introduce new unlawful measures and must abide by the principles set out in Baiai. The DLA further agrees with the analysis by ILPA regarding the measures required to tackle abuse ; marriages of convenience involving a foreign national cannot lead to the grant of immigration status to the foreign national on the basis of that marriage. This is the current legal position in both domestic and EU law. UKBA has the clear legal right to refuse applications on the basis of 'marriages of convenience. The UKBA should continue to use the powers at its disposal to detect marriages of convenience and refuse applications for immigration status on the basis of such applications. The DLA submits that UKBA s resources should be focused on refusing applications on the basis of marriages of convenience rather than on stopping marriages taking place. The fact of marriage does not lead to the right of status if the marriage is a sham. If a registrar reports a suspicious marriage, then UKBA can use its powers to investigate that marriage if an immigration application is made; it can not only refuse the application but also pursue action on the basis of the offences committed. It is therefore unclear how seeking to prevent foreign nationals entering into marriage or civil partnerships is a proportionate response to achieving the aim of preventing them from benefiting from it. We submit that the abuse which the UKBA rightly seeks to tackle is in obtaining immigration status not marriage. Therefore its focus should be on its powers to investigate and to refuse applications which are not based on genuine relationships rather than the potentially disproportionate proposed measures to prevent marriages taking place. Questions 9, 10 and 11 - Please see above general comments Question 12: Should sham be a lawful impediment to marriage in England and Wales? 6
The DLA is concerned that the explanation of a sham marriage or marriage of convenience in the consultation 4 could mislead readers to presume that immigration status, specifically lack of immigration status or short term immigration status is an indicator of a sham marriage. We strongly support the advice by ILPA that decisions on sham marriages should not include stereotyping, discriminatory profiling, race discrimination, gender and gender identity discrimination, age discrimination, or sexual identity discrimination. We refer to our above comments. We urge the UKBA to reconsider this and other proposals which amount to the imposition of disproportionate barriers to marriage when the abuse which UKBA is already well equipped to prevent is in obtaining immigration status. Question 13 - see above comments Tackling Forced Marriage Question 19: If someone is convicted of domestic violence, or has breached or been named the respondent of a Forced Marriage Protection Order, should they be banned from acting as any form of immigration sponsor for up to 10 years? The DLA endorses the response to Question 19 by Rights of Women which makes clear that this proposal does not offer an appropriate or effective way of protecting women from violence and may put women at greater risk of violence or abuse. Question 20: If the sponsor is a person with a learning disability or someone from another particularly vulnerable group, should social services departments in England be asked to assess their capacity to consent to marriage? We agree that those who do not have the capacity to make a decision about whether or not to enter into a marriage or other significant relationship should be offered meaningful protection from forced marriage. However, we share the concern of Rights of Women and others that social workers may not have the necessary skills and expertise to carry out such an assessment. There is no indication how such an assessment could be challenged by the individual concerned. It is unclear whether or not local authorities are willing and able to take on this additional responsibility. It may be that this role is best carried out by an Independent Mental Capacity Advocate. For this reason we recommend that the Public Guardianship Office should be consulted about this proposal, as well as specialist organisations such as 4 para 3.2 7
Respond www.respond.org.uk and Mencap www.mencap.org.uk. Other family members Questions 21 27 We submit that the proposals in the consultation relating to the entry and settlement of other family members should be considered in the context of the general appreciation of family life as part of the culture of British society and societies around the world. Generally societies expect that minor children are able to be with their parents and adult children are able to look after their elderly parents. The DLA submits that any new restrictions on achieving these universal expectations for family life, going beyond those already within immigration rules, need to be strongly justified, especially as the numbers involved (2,700 adult and elderly dependent relatives and 5,700 dependent children in 2010 5 ) are relatively small. Question 21: Should there be a minimum income threshold for sponsoring other family members coming to the UK? The consultation does not make clear how such a threshold would be used, so it is not possible to respond. Question 22: Should adult dependants and dependants aged 65 or over complete a 5-year probationary period before they can apply for settlement (permanent residence) in the UK? Question 23: Should we keep the age threshold for elderly dependants in line with the state pension age? It is correct that people are living longer around the world; however in many countries from which elderly dependents will seek to join their families in the UK during the next 10 years life expectancy is less than or not greatly more than 65 years. 6 We do not agree that the age threshold should be increased in line with UK pensionable age. 5 para 5.5 6 Figure 5, page 15 http://www.un.org/esa/population/publications/wpp2008/wpp2008_highlights.pdf 8
Question 24: Should we look at whether there are other ways of parents or grandparents aged 65 or over being supported by their relative in the UK short of them settling here? If yes, please make suggestions. Question 25: Should there be any change to the length of leave granted to dependants nearing their 18th birthday? If yes, please make suggestions. Question 26: Should dependants aged 16 or 17 and adult dependants aged under 65 be required to speak and understand basic English before being granted entry to or leave to remain in the UK? Question 27: Should adult dependants aged under 65 be required to understand everyday English before being granted settlement (permanent residence) in the UK? Points-based System Dependants Question 28: Should we increase the probationary period before settlement (permanent residence) in the UK for points-based system dependants from 2 years to 5 years? This proposal will neither verify the genuineness of the relationship between the couple nor encourage integration into British life; instead it will serve only to make life more insecure for points-based system migrants. Our concerns for this group are the same as for the spouses and partners of settled people (see Question 5 above). Question 29: Should only time spent in the UK on a route to settlement count towards the 5-year probationary period for points-based dependants? Question 30: Should we require points-based system dependants to 9
understand everyday English before being granted settlement (permanent residence) in the UK? Other Groups Question 32: Beyond race discrimination and ECHR grounds, are there other circumstances in which a family visit visa appeal right should be retained? If so, please specify. The right to appeal should be retained in its entirety. We do not agree that the figures given in the consultation document in relation to evidence provided at appeal stage indicates any abuse of the family visit visa application process. If the UKBA wishes to reduce the number of appeals against refusals to family visit visas it should focus on improving the quality of decision making and the guidance given to applicants and decision makers. ECHR Article 8 Questions 34 36 As we indicated at the beginning of our response, we are disappointed that the Home Secretary, in her speech on 4 October to the Conservative Party Conference, appears to have pre-empted this consultation by announcing that she will change the immigration rules to ensure that the misinterpretation of Article Eight of the ECHR -- the right to a family life no longer prevents the deportation of people who shouldn t be here. The urgency she indicates could give the false impression that the UK is facing a problem of extreme proportions. In fact, in 2010 of 850 appeals against deportation, in only 102 cases, or 12 % of the total, was an appeal successful based on Article 8. 7 The consultation does recognise that the right to private and family life under Article 8 is a qualified right and thus can already be balanced to consider the rights of other people and the wider interests of society; there is therefore no need to seek to rebalance this fundamental right. Further it is wholly inappropriate to do so in an immigration context, especially when the Ministry of Justice and Office of the Deputy 7 Appendix 2, Section 3, Briefing, Deportation and the right to respect for private and family life under Article 8 HRA, Human Rights Futures Project, LSE, September 2011. te: the figures do not indicate whether the deportation was ordered following a criminal offence or an immigration offence. 10
Prime Minister have launched a Commission on a UK Bill of Rights to investigate and consult on options for the future protection of human rights, including Article 8. We submit that the questions on reforming Article 8 are flawed, and risk creating a bank of evidence for reforming Article 8 which is not based on appropriate and accurate information and legal analysis. We are concerned that this is likely to lead to knock-on effects for the way Article 8 is misrepresented in media and political debates, and more broadly. Question 34: Should the requirements we put in place for family migrants reflect a balance between Article 8 rights and the wider public interest in controlling immigration? We are concerned that this question gives a misleading impression about the current application of human rights law in immigration cases. Article 8 is a qualified right, that is, it already involves balancing the right of the individual against the interests of wider society and the rights and interests of others. Article 8: Right to respect for private and family life 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. Immigration control has been recognised as a legitimate reason under Article 8(2) to limit Article 8 rights, provided the limitation is lawful, necessary and proportionate. The DLA believes that the balance built into Article 8 is sufficient to enable the wider public interest in controlling immigration which need to be taken into account in family migration cases to be given appropriate weight. Question 35: If a foreign national with family here has shown a serious disregard for UK laws, should we be able to remove them from the UK? 11
The DLA is concerned that this question deliberately confuses the issue of family migration with the deportation of convicted offenders and suggests that Article 8 prevents or hinders the deportation of people convicted of criminal or immigration offences when this is not the case. The law is clear that Article 8 does not take away the power of a state to deport a convicted offender in order to maintain public order and protect members of society. What Article 8 does is to require that decisions to deport which interfere with the right to respect for private and family life must be lawful, necessary and proportionate to the legitimate aim pursued. Question 36: If a foreign national has established a family life in the UK without an entitlement to be here, is it appropriate to expect them to choose between separation from their UK-based spouse or partner or continuing their family life together overseas? This question wrongly gives the impression that human rights are dependent on citizenship or immigration status, and that a person may lose their human rights if they have an uncertain immigration status. This is not the case, since human rights apply to all people irrespective of immigration status (or status as a convicted offender); the universal nature of human rights is an important feature of their development following the horrors of the Second World War. In General Question 38: What more can be done to promote the integration of family migrants? The integration of family migrants is best achieved through the adoption and implementation of just and fair immigration policies which treat family migrants with respect, and which facilitate rather than inhibit their moving to a position of security in the UK as quickly as possible. If the government wishes to promote integration, it needs to acknowledge that the real motivation of the majority of family migrants is perfectly legitimate, and that they make a cultural and economic contribution to the UK and to local communities. Question 39: What more can be done to reduce burdens on the taxpayer from family migration? There is no evidence that family migration places any financial or other burden on the taxpayer. Indeed, many family migrants are taxpayers if they work in the UK or purchase goods and services. As such they have a right to expect that this contribution is not disregarded by UK politicians. 12
Question 40: How should we strike a balance between the individual s right under ECHR Article 8 to respect for private and family life and the wider public interest in protecting the public and controlling immigration? See above, our response under the heading ECHR Article 8 Discrimination Law Association 6 October 2011 13