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

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

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 www.airecentre.org For more information about the contents of this report please contact efenelon@airecentre.org or info@airecentre.org

Introduction This summary report condenses the findings of the AIRE Centre s UK Country Report Family Reunification Requirements: A Barrier or Facilitator to Integration?, which 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 1. 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. 2 This is an important area for research given the fastpaced development of family reunification policies in the UK and the lack of research into their impact. 3 The study considers three separate categories of TCN family migrant, each distinguished by the status of their sponsor: those sponsored by (i) TCNs, (ii) Union Citizens, and (iii) UK nationals. 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 states participating in the study, four main types of requirement were selected as focus areas: accommodation, income, age and integration. Similarly, given the difficulty in finding a non-controversial definition of integration on the one hand and the need to draw comparisons across states on the other, this study focuses on four areas identified as essential to integration by the European Commission. These are employment, education, social inclusion and language skills. In addition, the impact of family reunification policies on the ability of families to achieve reunification, which is considered important for integration, is considered. This study used a mixed method approach. Data was drawn from four main sources: a literature review, legal research, official immigration statistics and primary qualitative research. Qualitative research was conducted with (i) individuals who are subject to family reunification legislation and policies (hereafter individuals ); (ii) representatives of NGOs that work with such individuals (hereafter NGO representatives ), and (iii) policy makers who are responsible for developing/implementing family reunification policies (hereafter policy makers ). For further details of the research methodology and sample, see the UK Country Report. 1 The full report can be found at www.airecentre.org 2 Participating states are: Austria, Bulgaria, Germany, Ireland, The Netherlands, Portugal, and the United Kingdom 3 Charlsey, Van Hear, Benson and Storer-Church (2012), forthcoming, Marriage migration in the UK, International Migration Review, 46 3

Legislation And Policy Developments Over The Past Decade i. Legislation 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 dependant applying. As outlined in the Country Report, the rules for EEA nationals family members are generally less restrictive than those that apply to family members of settled TCN migrants, PBS (points-based-system) migrants, refugees and UK nationals. Family members of settled TCN migrants and UK nationals face the most stringent income, accommodation, age and integration requirements. ii. Policy Developments The table below summarises policy developments regarding income, accommodation and age over the past 10 years. The detail concerning their application and the reasons for their implementation is contained in the Country Report. Date Policy Type Detail of policy 2003 Age Minimum age requirement for Applicants of spouse/partner visas increased from 16 to 18 2004 Age Minimum age requirement for Sponsors of spouse/partner visas increased from 16 to 18 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 become 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 21 2009 Income Tribunal case decides that third party support can be relied upon to meet the income requirement 2010 Integration A1 level pre-entry test introduced 2011 Age Minimum age requirement for spouse/partner visas lowered to 18, following successful legal action 2012 Income Minimum income requirement for spouse/partner visas increased to 18,600 for a partner, with incremental increases for child dependants 4

The bulk of policy developments concerning income, accommodation, age and integration requirements have affected TCN family members of settled TCNs (including those under the family migration route and extended/post-flight family members of refugees) and UK nationals. 4 For this group, the overwhelming trend has been towards more restrictive requirements. By contrast, family members of Union Citizens and close family members of refugees have acquired greater rights to family reunification over the course of the past decade. Findings from the literature review and primary research suggest that over the past 10 years, the government s aim has been to restrict family migration as far as possible. However, due to obligations under EU/ECHR law, it has not been free to do this for Union Citizens and their family members or refugees. Policy makers confirmed that this is the reason for the difference in treatment across the categories of migrants. iii. Administration of Family Reunification Requirements in the UK 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. iv. Relevant Case law of the UK, ECtHR and CJEU Whereas the focus of the European Court of Human Rights is on whether a particular state has overstepped its margin of appreciation in respecting individual rights, the question for the European Court of Justice (now Court of Justice of the European Union) has been whether restrictions on family migration may discourage EU citizens from exercising their rights to free movement or will impede the enjoyment of EU citizenship. 5 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 to family reunion than the states own nationals do. However, a survey of the case law suggests that UK Supreme Court jurisprudence is more favourable to applicants for family reunification in some respects. 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 thereunder. 4 PBS and pre-flight family members of refugees are not included nor are people with humanitarian protection 5 See Chapter 5, UK Country Report 5

The Impact Of Family Reunification Requirements On The Ability To Achieve Family Reunification Findings from the literature review and primary research suggest that the conditions for family reunification, the administration of family reunification applications and the unstable legal status of admitted family members are all potential barriers to family reunification in the UK. i. Family members sponsored by settled TCN/UK nationals Over the past 10 years, the majority of policy developments in the field of income, accommodation, age and integration have concerned TCN family members sponsored by settled TCNs and UK nationals, and extended/ post-flight family members of refugees. Focusing on this group in particular, the overwhelming trend has been towards more restrictive policies. 6 Individuals and NGOs who participated in the primary research felt that the restrictive policies had made it harder to achieve family reunification. Statistics published by the Home Office are consistent with this. The overall trend between 2005 and 2011 was a decrease in the number of applications for Entry Clearance Visas and in the number of Entry Clearance Visas granted, coupled with an increase in the proportion of Entry Clearance Visas that were refused. Similarly, the number of people granted leave to enter the UK as the family member of a settled TCN/UK national Sponsor decreased between 2004 and 2010. Whilst it is not possible to rule out other I ve been supporting him, but I m having babies soon, and it would be nice for him to be there to help me It s been an absolute nightmare. Words can t describe the emotion. I ve been referred to a psychologist for prenatal stress. I ve been hospitalised. Emmiline* Dual British-US Citizen speaking about sponsoring her Yemeni husband. possible factors that may have caused the decrease in family migration to the UK, it is likely that the two phenomena are, at least to some extent, linked. In contrast to grants of leave to enter, grants of settlement have remained broadly stable over the past decade. 7 However, they dropped substantially between 2003 and 2004 and rose substantially between 2011 and 2012. It is not clear what was responsible for the drop in numbers from 2003-2004. The drop preceded the introduction of integration tests for settlement (these were proposed in 2005 and implemented in 2007). Nor is it clear what has led to the spike in applications in 2011. One possible theory is that family migrants seeking to avoid more stringent requirements for settlement (proposed in March 2011) applied sooner than they might otherwise have done. 6 As outlined in Chapter 2, UK Country Report, PBS migrants face fewer requirements for family migration than TCN/UK national sponsors and their family members. This has been true over the ten-year period covered by this study. 7 It remains to be seen whether there will be a fall in numbers of grants of settlement to reflect the fall in numbers of grants of leave to enter/entry Clearance visas. 6

In terms of specific requirements, individuals and NGO representatives singled out the income and integration requirements as being particularly difficult to meet. Some studies in the literature review suggest that increases in the minimum age requirement for spouse/partner visas presented a barrier to family reunification for thousands of couples in genuine relationships. The Migration Advisory Committee has estimated that the new income requirement alone will result in 45% of present applications for family reunification being refused. Findings from both the literature review and primary research suggest that requirements for family reunification for family route migrants People may learn just about enough to pass their language test before arrival and complete the 40 hours or whatever it is that they need in order to pass the test, but then it may be a few months before they come to the UK and they will often have forgotten how to speak. So I'm not sure that it really helps them to integrate NGO Rep speaking about language requirements may be discriminatory, in that they appear to make it harder for some groups to achieve family reunification than others. The income, language, and age requirement were identified as particularly discriminatory in their impact. Amongst Sponsors, groups identified as being discriminated against were those from lower socio-economic groups and those likely to have lower incomes (women, young people, older people, minority ethnic groups and refugees applying for extended/ post flight family reunification). Amongst Applicants, groups identified as being discriminated against were those from non-western cultures, or those from countries without visa application centres, approved language testing centres or widely available English language courses. Given the limitations of Home Office data, it is not possible to see whether the potentially discriminatory impact of requirements on these groups of Sponsors and Applicants is borne out in practice. Available data on pre-settlement language tests suggest that they are harder for people from non-english speaking, or less developed, countries to meet. 8 NGO representatives and individuals felt that the procedure for applying for family reunification also presents barriers to family reunification. Some felt that the system was deliberately made as difficult as possible to try and deter people from pursuing their application for family reunification. Three major administrative barriers identified were: (i) the opaqueness of the system; (ii) poor quality decision making by embassy and UKBA staff; and (iii) the lack of facilities (including language test centres, approved language courses and visa application centres) for meeting the requirements for family reunification. Ignorance of the circumstances under which UK nationals can be treated as Union Citizens for the purposes of family reunification was a barrier to family reunification for some individuals interviewed in this study. 8 See Chapter 5, UK Country Report 7

ii. Family members sponsored by Union Citizens UK policy on Union Citizens has largely been driven by EU legislation and case law, rather than government policy. 9 Over the past 10 years, the rights of Union Citizens and their family members have strengthened as a result of developments at EU level. In addition more EU rights have been actualised in the UK due to legal action. NGO representatives and individuals who were Union Citizens or their family members recognised that the conditions for family reunification were less stringent for them than for families with a TCN or UK national Sponsor. Consequently, they felt that it was easier for them to reunite with their family member. However, the literature review indicated that improper implementation of EU law prevents some people who are entitled to family reunification as a matter of EU law from achieving it in practice. The European Commission is currently bringing infringement proceedings against the UK in relation to domestic implementation of EU law. Findings from primary research indicate that the main barriers to family reunification for Union Citizens and their family members are procedural. The main procedural barriers identified by study participants were: (i) incorrect implementation of the requirements for family reunification in the UK (including the unlawful imposition of additional requirements), (ii) the complexity of the system, and (iii) delays in processing applications. For example, three individuals experienced delays of over a year when they applied for EEA2 permits. The Impact Of Family Reunification Requirements On Integration This section summarises findings on the impact of family reunification legislation and policies on the four aspects of integration that are the focus of this study: employment, education, language skills and social inclusion. It also concludes on the link between family reunification and integration. The overall picture from the literature review and primary research is that the requirements for family reunification do not aid integration into the UK. On the contrary, the requirements, together with the manner in which they are implemented and the limited rights of admitted migrants, present a barrier to integration. i. Impact of family reunification requirements on employment The literature review and primary research indicate that although most categories of family migrant have the right to work in the UK there are barriers to them doing so in practice. Thus the formal right is insufficient to guarantee family migrants access to employment. Barriers identified by the literature review were employers attitudes towards family migrants and poor 9 See Chapters 2 and 5, UK Country Report 8

knowledge of immigration law, and a lack of support with finding work in particular for refugees. NGO representatives and individuals who participated in the primary research felt that none of the requirements for family reunification in the UK facilitate access to the labour market. They dismissed the idea that pre-entry language testing was helpful, and some individuals thought that delays arising from meeting the language requirement weakened their family members prospects of employment in the UK. Many thought that aspects of admitted migrants legal status and rights created barriers to employment and/or labour market mobility. Barriers most commonly cited were: lack of entitlement to public resources (in particular help finding work from the Jobcentre and free/subsidised language classes), employers being put off by migrants unstable immigration status prior to settlement/permanent residence, and not being able to leave the UK for work trips. Many individuals said that the administration of applications for family reunification also presented barriers to accessing employment. Chief amongst these were delays in processing applications and poor advice from UKBA staff. These variously led to employers being put off, jobs being lost, and migrants remaining in unsuitable jobs. 10 ii. Impact of family reunification requirements on access to education: There was no evidence from either the literature review or primary research to suggest that the requirements for family reunification facilitate access to education in the UK. The overall picture 'My husband wants to learn English. He wanted to learn it even before he found out about the English language requirement because he wants to speak to my family...and he wants to communicate with people. We're for him learning English...But in order to pick up English he needs to be around other people who are speaking English. British sponsor of TCN spouse was that despite the fact that children aged 5 to 16 have the right to state education in the UK, they are not always able to enforce it in practice. Consequently, some groups of migrant children are effectively excluded from the education system or have their schooling delayed. Findings from the primary research, taken together with the literature review, suggest that there is variation in access to primary school education for TCN family migrants in the UK. A further issue raised by the literature review is that less affluent TCN family members of TCNs/UK nationals, who are over the age of 16, face financial barriers to education in the UK. This is because they are subject to higher rates than the home fee. iii. Impact of family reunification requirements on language skills Neither the literature review nor the primary research provided any evidence that the requirements for family reunification have any long-term impact on migrants language skills. 10 See Chapter 6, UK Country Report 9

Findings from the literature review suggest that the government implemented pre-entry language tests despite there being no evidence of their effectiveness. A number of academics, NGOs and lawyers have criticised this move, and have highlighted evidence that (i) the best place to learn English is in the UK, and (ii) the acquisition of pre-entry English to grade A1 [the minimum level required of TCN migrants] will not appreciably speed up the acquisition of additional language skills on entry to the UK. 11 Policy makers who participated in the primary research implicitly argued that preentry/settlement language tests aid TCN family members language skills. However, they failed to show a link between language tests and long-term linguistic ability and one tacitly admitted that language tests are not based on evidence of their positive impact. Most NGOs and individuals doubted the long-term impact of pre-entry/settlement language testing. Some felt that it was counterproductive to learning language skills; firstly because people learn English faster when surrounded by English language speaking people; and, secondly because the sometimes considerable cost of meeting the pre-entry language requirement takes away money that is needed for post-entry language classes. iv. Impact of family reunification requirements on social inclusion The European Commission s definition of social inclusion is broad and non-exhaustive. Key elements are civic participation, the ability to build social networks, access to social goods (such as voting, healthcare and public resources) and the attitudes of the host community. Studies identified by the literature review suggest that the probationary period, and the lack of entitlement to public resources during this period are a barrier to social inclusion, not least because they restrict independence and limit migrants ability to build social networks. Some studies suggested that TCN family migrants are increasingly excluded from civic participation in the UK. There was very limited research into the impact of the requirements for family reunification on social inclusion. One qualitative study into experiences of the Knowledge of Life in the UK test found that, in general, it was considered a bureaucratic hurdle with no relevance to participation in society and no positive impact on integration. The man asked him what he wanted to do in England and I said that he wants to seek work and study English and the man said is this at your expense or the tax payer s expense? I mean, he had his visa and they said it s alright for him to come here He was held for two hours going through customs. I think it s really detrimental for people to feel that they re not wanted here British national sponsor of TCN spouse 11 Liberty (2011), Written submissions on behalf of Liberty (intervener), R (on the application of Chapti, Chapti & Bibi) v Secretary of State for the Home Department, http://www.liberty-human-rights.org.uk/about/legal/interventions/chapti-and-others-v-secretary-of-state-forthe-home-department-2011-.pdf 10

The prevalent view amongst NGO representatives and individuals was that the requirements for family reunification were a barrier, rather than a facilitator, to social inclusion. Policy makers viewed the Life in the UK test as an important means of ensuring that migrants could participate in British society. However, they implicitly accepted that there was no evidence for this. Most NGO representatives and After 2 years apart we have now decided that for me to relocate to Germany would be our best chance to be together and enjoy our remaining lives as a family. This of course plays well into the government s hands and maybe forcing British citizens to move abroad is part of their plan to reduce net migration. British National speaking about his Russian spouse individuals felt that the knowledge required to pass the Life in the UK test was irrelevant to social inclusion. Some regarded it as a barrier because anxiety about the test and the contingency of settlement on passing it impacted on job prospects, financial stability, independence and psychological wellbeing. Many individuals, in particular settled TCN and UK national Sponsors and their family members, said that the financial costs associated with achieving family reunification left them in a weaker position to be socially included in the UK. This was a particular issue for families with applicants from countries without approved language testing or visa application centres. NGO representatives and individuals said that the lack of access to social goods, in particular the fact that family migrants do not have the right to vote, was a barrier to social inclusion. In addition, some individuals across all categories of family migrant said that the lack of access to social goods, or having to access such goods through their partner during the probationary period, was a psychological barrier to feeling socially included. Further, many individuals (predominantly family members) across all categories of family migrant said that the dependence of their immigration status on that of their Sponsor made them feel a loss of agency. A recurring theme amongst most, if not all, individuals interviewed was the feeling that the family reunification process was designed to make them feel like criminals or as if they were cheating the system even when they had a right to or had been granted visas. Treatment by UKBA staff, in particular, made them feel socially excluded. v. Link between family reunification and integration The literature review found very little UK based research that directly considered the link between family reunification and integration. A study by the British Red Cross in 2011 suggests that family reunification is essential to the integration of refugees. In the primary research, there was strong consensus amongst NGO representatives and individuals that having the support of one s family is crucial to integration. They felt that the presence of family members supported migrants integration through raising their self-esteem, helping them to work towards ambitions and supporting their position within the host community. Individuals who were, or had been, separated from their family members stressed the detrimental impact that this had on their ability to integrate in the UK. 11