Sheona York, Solicitor and Reader in Law, Kent Law Clinic, University of Kent — Written evidence (FAM0017)
My background
I have practised in immigration and asylum law since 1979, at Hammersmith and Fulham Community Law Centre 1979-2008, Immigration Advisory Service 2009-11, Rights of Women 2011-12 and since 2012 at Kent Law Clinic. I have acted for migrants and asylum-seekers from all over the world, either on legal aid or pro bono as at Kent. I have published a number of relevant academic articles, and recently a book The impact of UK immigration law – declining standards of public administration, legal probity and democratic accountability. https://link.springer.com/book/10.1007/978-3-030-98721-3.
Background to my submissions
For too long, immigration law has focused on ‘control’ and ‘enforcement’ to the almost complete neglect of the broader impact of control and enforcement measures on wider society. For example, besides not succeeding in its declared aim of discouraging unlawful migrants from remaining here, the ‘hostile environment’ itself tends to create and perpetrate illegality precisely because the legal requirements for all immigration ‘routes’ have been made so difficult to comply with. This applies particularly to family migrants. Lengthening ‘routes’ to settlement, requiring numerous repeat applications, especially for families, in an attempt to exclude people who may temporarily fall below a required income level or who may temporarily need access to public funds, simply adds to the bureaucratic burden of a government department which has almost never, in decades, managed to reduce application waiting times to levels acceptable in other bureaucratic procedures. The outcome is that in Britain, living and surviving amongst us, is a population of around one million ordinary individuals and families with children who have no leave to remain, [1] and another population of a similar size surviving on time-limited visas,[2] also with no recourse to public funds, defined legally as ‘precarious’ and therefore whose lives in the UK are to be given ‘little weight’ in any court proceedings.[3] These are our partners, children, friends, neighbours and fellow workers as well as those who are destitute and surviving on support from charities, churches and local authority social services payments. Whether unlawfully present, or on a ‘route to settlement’ for which they don’t meet the requirements for their next visa application, such individuals and families do not ‘go home’, but simply endure, in the hope of a solution to their situation. A recent client family of mine, unlawfully present for well over a decade, received their permission to stay earlier this year. That client described the decision as ‘a release from bondage’.
Such individuals and families are both part and not part of our society, both participating and not participating. We saw during Covid how many essential workers in key sectors of the economy are migrants on time-limited visas, some on work visas but others here on family or private life routes to settlement. All over Europe, including in the UK, there was a belated recognition that these workers are part of our society, and should be recognised as such – maybe with indefinite leave to remain or even citizenship. The ‘no recourse to public funds’ provision amounts to an onerous supertax, which falls heavily on family migrants in particular. For example, British children of migrant parents are deprived of child benefit and other benefits directed towards families and children, while at the same time expected to save around £2500 for each applicant, every 2 ½ years.[4]
It is pure fantasy to expect those who don’t comply to ‘go home’, and to demand that the Home Office remove or deport the ones who are here. The requisite internal control measures (compulsory universal ID cards) have been declared to be intolerable by all major political parties. Published reports have estimated the cost of deporting and removing ‘illegals’ at billions. It was estimated that at 2009 Home Office removal rates it would take over 30 years to achieve;[5] and current removal rates are far lower.[6] And for those ‘failed’ family migrants and ‘failed’ asylum seekers who remain unlawfully, even for those who suffer sexual and other types of exploitation to survive here, the prospects of ‘going home’ with no money, no job, no family support, in poorer societies with even fewer safety nets than here, is far worse than the UK hostile environment could ever be acceptably made.
It is time we no longer based our immigration policy on ‘control’ and ‘enforcement’, but began with a fresh understanding of citizenship as ‘common purpose’, and residence as a path to citizenship, in which migrants who are effectively settled here, whether lawfully or not, are given safe, cheap and efficient application processes through lawful residence, indefinite leave to remain and citizenship – with an explicit public campaign of welcome, and on the importance of political participation and engagement in civil society. What is required for this are simplified application procedures, a shared burden of proof and adequate staff resources for ‘right first time’ decisions.
Our society is absolutely not assisted by policies enforcing separation of families and denying safety-net income to family migrants. In the latest Immigration Rules[7] there is a small recognition of this, in the new measures to grant indefinite leave straight away to children and young people rather than obliging them to serve out the full 10 years of the ’10-year-route’ to settlement. And, following litigation,[8] there has been a welcome and essential relaxation in the granting of fee waivers to family and private life applicants who cannot afford the application fees. But these are only small tinkering reforms which are not widely known apart from among applicant NGOs and some immigration lawyers.
Fundamental to the current rules and policies on family migration, including the interpretation of art 8 ECHR, is the aim to restrict access to normal family life in the UK to only those who can support themselves financially, grudgingly granting short periods of leave to remain for those who are reluctantly accepted to have rights under art 8. Instead, what is needed is a sober acceptance that since the majority of these migrants will be remaining here anyway, the aim should be to integrate them, and especially their children. For this we need a public commitment to regularising and enfranchising these populations, giving them immigration security, drawing them into our shared expectations of citizenship and civic participation, rather than persisting in policies which enforce separation, and which create uncertainty and even illegality. Just as residential tenants are entitled to the ‘quiet enjoyment’ of their tenancies, people on ‘routes to settlement’ should be able to be confident that any future rule changes making settlement and citizenship more difficult will not apply to them, but only to those who have not yet arrived.
Design of family migration law
UK immigration law has among the narrowest conceptions and restrictive applications of ‘family’ and ‘relative’ in Europe. Not only is ‘family’ generally restricted to ‘partner and minor children’, but the laying of the burden of proof on the applicant leads to (i) a culture of disbelief about whether families are related as claimed[9] and (ii) Home Office misapplications of its own discretion, for example ‘parent’ is defined for the purpose of some rules to include people playing a parental role, but in one case of mine this was misapplied, leading to a woman having to apply for support from the Council as destitute during the 18 months it took for her appeal to be heard and allowed.
The refugee family reunion rules’ exclusion of siblings and parents of young people with refugee status is shocking, and wasteful of public money. A few thousand young unaccompanied minors arrive in the UK each year, and many are granted refugee status. The rules do not provide for them to sponsor a parent or a sibling. The Home Office’s argument is effectively that families in places such as Afghanistan would send a young boy to claim asylum in the UK deliberately in order to get the right for the whole family to gain entry here. As with other ‘pull factor’ arguments, there is little if any evidence of such. The result is that Britain hosts numbers of young foreign refugees surviving poorly in ‘independent living’ arrangements provided by local authorities, without the support of family members. Casework experience shows that once young people know where family members are, they cannot move on with their lives until they have tried to bring them to the UK.
The rules dealing with entry of elderly dependent relatives are almost impossibly strict, requiring the relative to be needing daily personal care attested by a social worker, where such care cannot be provided by sending money home to pay for care. It is understood that these strict rules actively discourage professionals such as doctors from choosing to work in the UK as they know that they will not, later, be able to bring aged parents and grandparents to their home as would be expected in their own country. I won such a case only by providing academic evidence that in the particular country concerned, there was a regrettably high incidence of people offering to care for elderly relatives simply for the payment, and the elderly person would be barely kept alive while the ‘caring family’ spent the money on themselves. But the fundamental point is not whether the rules are too strict, but that they show no understanding of what family life means.
There are different rules applying to workers and their families. The worker rules are both crude and overspecified, with many different categories of worker each having their own requirements as to whether family members may join them. We know that since leaving the EU the UK has been beset with labour shortages in vital service areas including health, transport, agriculture and food processing. The Home Office response to these has been to belatedly introduce new special short-term visas for different niche groups of workers, generally without any provision for bringing family members. Visas on such terms are not attractive (the HGV scheme was particularly unsuccessful). At the other end of the spectrum, free movement for EU workers and their family members avoided the entire bureaucracy of visa processing altogether, and permitted entry and stay to a much wider group of relatives and dependants. It would be useful to find evidence about how important the right to bring family members is to different groups of workers, and present the evidence clearly to the public, to ensure a politically informed choice between stricter and more detailed controls, with associated bureaucratic costs and labour shortages, as against more fluid policies allowing workers and families to enter more freely.
The different policies applying to family migrants are entirely and narrowly based on money: on the need to show that the family will not be, or become, a burden on public funds. Those who can meet the family migration rules in full may enter the ‘five-year route’ to settlement, requiring three applications for leave to remain each costing around £2500 per person. Those who cannot meet those rules, but who qualify under the specified exceptions designed to represent the Home Office interpretation of art 8 ECHR,[10] may enter the ’10-year’ route’, requiring 5 applications each costing around £2500 per person. It is these heavy requirements and high application fees, required to be repeated over such long periods, which create uncertainty, insecurity and even illegality as families fall into and out of work, or even split up. It would be useful to know if the Home Office has seen any research showing the incidence of family breakdown amongst family migrants – though the Home Office would probably deduce that the breakdown ‘showed’ that it was not a genuine relationship. Ten years after the new family migration rules were introduced, the Immigration Rules have finally allowed people to continue on the same 10-year route to settlement even if the specific basis of their application changes, for example from ‘parent of a child’ to ‘partner’ or ‘private life’. But the ‘public interest’ criteria introduced in the Immigration Act 2014[11] provide that if any such case reaches the tribunal, a judge must give ‘little weight’ to periods of unlawful residence and ‘little weight’ to periods of private life while ‘precarious’ – so anyone who is refused leave faces a difficult path through an appeal.
The impact of retrospectivity in immigration control
The long ‘routes to settlement’ combined with the ineradicable delays in Home Office decision-making mean that applicants who met the rules at the time of application find themselves being refused after rule changes: and applicants for subsequent periods of leave are often faced with new restrictive requirements and/or higher fees. There is held to be no legitimate expectation of being able to proceed smoothly to ILR, except where the terms of the ‘route’ explicitly so state.[12] The legal position,[13] that any application should be decided under the rules pertaining at the date of decision, in these circumstances amounts to retrospective legislation, formally disapproved and accepted to be a violation of rule of law principles.
Instead, I recommend starting from the point of view of citizenship as ‘common purpose’, which in this context means a commitment to encouraging at least all those embarking on ‘routes to settlement’ to progress smoothly through to indefinite leave and citizenship. A 5-year probationary period for everyone, harmonising the family rules with the current settlement rules for workers, EU settled status applicants and refugees, would be an improvement. This would require one application for entry or limited leave to enter the ‘route’, and then one further application, for indefinite leave after 5 years. For any given family, that later application should face requirements no harsher than those pertaining at the time of their entry. In other words, a person entering a ‘route to settlement’ would know exactly what requirements they would face to gain indefinite leave. Also urgently required would be
Abolish precarity
A separate, essential legal reform would be that those on ‘routes to settlement’ or indeed on any visa potentially leading to settlement, should be explicitly excluded from the definition of ‘precarious’ and thus rescued from having their lives, or parts of them, deemed to have ‘little weight’ in any appeal.
The actual and probable consequences of the introduction of the minimum income requirement were exhaustively discussed in the High Court judgment of Blake J in MM & others.[14] However the Supreme Court decided that in law the aim was reasonable and that the financial requirement chosen was not irrational, and that so long as the rules provided for exceptions there was no incompatibility with the Convention.[15] But family migrants from abroad who cannot meet the Rules are faced with paying a fee, waiting months for the application to be refused, and waiting a further long period for an appeal to be heard, all the time separated from their family – often resulting in the family in the UK being dependent on state benefits. It is not clear whether the Home Office has undertaken or considered any research quantify the these broader costs, in terms of both money and impacts on health, education etc, on divided families.
After further litigation the Home Office has decided to introduce a fee waiver process for applicants from outside the UK.
The only efficient way to adapt the requirement to changing economic circumstances, in this period of high inflation and economic downturn, would be to return to the simpler and much lower requirement ‘to maintain and accommodate without recourse to public funds’. Efficient because already known to Home Office decision-makers, is calculated in relevant immigration cases by a simple formula, set out in guidance, based on current benefit rates. Efficient also because, with a lower level of requirement, there would be fewer fee waiver applications to process, fewer refusals of family migrants on routes to settlement, fewer applications to deal with altogether, and fewer appeals on art 8 grounds (as well as fewer single-parent families, etc).
How family migration policies affect society
I don’t believe that the Home Office has based its labour migration policies on any evidence about these issues, but simply responds ad hoc to each labour shortage crisis as it comes along.
Here follows a list of possible impacts, about which I do not believe the Home Office will have done or listened to any research:
The local authority bill for supporting families under s17 Children Act, who have an outstanding human rights application [to enter the 10-year-route] must be high, especially given that the Home Office takes up to a year to decide these cases. The case of Amalea Clue[16] lays the burden on local authorities to provide for a family where their human rights application is not abusive or hopeless, but there is no concomitant pressure on the Home Office to deal promptly with these applications.
Some local authorities do not provide any assistance to such families until a formal application has been made to the Home Office.[17] But the combination of no legal aid and consequent advice deserts and droughts[18] for family life human rights applications, and the practical problems faced by unlawfully-present families (costs and bureaucratic problems of renewing or obtaining passports, obtaining, storing and presenting evidence of residence and financial support, etc) means that weeks and months may have to be survived before a well-supported formal application can be made. In the meantime, there is no formal support available, even for the British children of such parents. The bare survival amongst us of such families must present eventual social costs (poor health, absence from school, etc) which will eventually bear on local authorities’ future social services and housing budgets.
How family migration policies affect families?
The denial of a fee waiver for indefinite leave to remain applications is particular pernicious, forcing people to remain on time-limited visas and therefore ‘precarious’ for further extended periods.
This situation leads to wasted opportunities for the children of such families: For example, a 19-year-old daughter in a family on the 10-year route to settlement, waiting several months for a decision, has lost the chance of a BBC journalism internship from ‘not having leave to remain’ – of course she has, under 3C Immigration Act 1971, but very few employers or institutions appreciate this.
The well-being of families could best be ensured by
Look at the EU Settlement Scheme for how to handle millions of applications competently in 2-3 years.
From client casework experience it is clear that a factor in family breakdown for migrants is the strain of separation coupled with having to continue to meet the requirements.
This is almost the most important issue. Family migrants on routes to settlement, or sponsoring people to enter, especially where dependent on human rights claims, and refugee family reunion sponsors, cannot participate properly or at all in British society, certainly not in a formal way. No right to vote until citizens – a status immeasurably distant for many family migrants. Many are scared off from joining a trade union or becoming active in it for fear of being refused their next visa. Working long hours in order to meet the minimum income requirement, most do not have the time or energy to participate in community, leisure, sport or political activities. The unpredictable time for applications to be decided (there being no service standards or legal pressure on the Home Office); the sheer stress, fear of future restrictive rule changes, the financial burden of being on no recourse to public funds, the strain of having constantly to reassure relatives that everything that can be done is being done, takes its toll.
9 September 2022
[1] There is no recent or authoritative measure of the numbers of unlawfully-present migrants in the UK. Since the 2000’s various bodies have made estimates: see for example the following reports : Gordon, Ian et al. 2009. GLA Economics. 2009. Economic impact on London and the UK Economy of an earned regularisation of irregular migrants to the UK; https://www.london.gov.uk/sites/default/files/gla_migrate_files_destination/irregular-migrants-report.pdf GLA [7]
Mayor of London/University of Wolverhampton. 2020. London’s children and young people who are not British citizens Greater London Authority; Migration Watch 2019 briefing MW 434 https://www.migrationwatchuk.org/key-topics/illegal-immigration
[2] See for example Migration Observatory. 2019. Permanent or Temporary: How Long do Migrants stay in the UK? University of Oxford
[3] Rhuppiah [2018] UKSC 58
[4] ST & Anor v SSHD [2021] EWHC 1085
[5] Migrants Rights Network 2009 Irregular Migrants – the urgent need for a new approach [16]
[6] See for example Fig 5: Returns by type of return, 2011 to 2021 in Nov 2021 Immigration Statistics: https://www.gov.uk/government/statistics/immigration-statistics-year-ending-september-2021/how-many-people-are-detained-or-returned
[7] Statement of Changes in the Immigration Rules HC1118 March 2022
[8] R (on the application of Dzineku-Liggison and Others) v Secretary of State for the Home Department (Fee Waiver Guidance v3 unlawful ) [2020] UKUT 222
[9] Javid’s 2018 apology for suggesting DNA tests were ‘imperative’ - HC Deb Immigration: DNA Tests Volume 648 25 October 2018 col 468
[10] Immigration Rules Appendix FM GEN 3, para EX.1,
[11] As part 5A Nationality, Immigration and Asylum Act 2002
[12] HSMP Forum UK Limited [2008] EWHC 664, Oludoyi & Ors, R (oao) v SSHD (Article 8 – MM (Lebanon) and Nagre) (IJR) [2014] UKUT 539 (IAC)
[13] Odelola v SSHD [2009] UKHL 25
[14] MM, R (oao) v SSHD [2013] EWHC 1900 (Admin)
[15] MM (Lebanon) & Ors, R(oao) v SSHD [2017] UKSC 10
[16] Amalea Clue Birmingham City Council v Clue [2010] EWCA Civ 460 [63]
[17] It is understood that London boroughs, and some other groups of local authorities, do provide some advice and support to such families.
[18] Jo Wilding, Droughts and Deserts: a report on the legal aid market, Brighton 2019