Marcus Lin, PhD Student at University of Glasgow, School of Law — Written evidence (FAM0020)    

Introduction

●     I am Marcus Lin, a PhD student at School of Law, University of Glasgow. This is submitted in my personal capacity.

●     Here I am submitting my evidence with a focus on Adult Dependant Relative visa (ADR), as this issue is unduly overlooked. I will mainly answer questions related to laws.

The fundamental problem with ADR is its extremely restrictive conditions that most people cannot fulfil. This visa category is in effect closed now for all immigrants, including new EU immigrants.

●     Condition 1: a high level of dependency. The adult dependant must be in the situation of being unable to take care of themselves. In many cases, they are required to be nearly ‘all but vegetating’. If the mother or father is still fit and healthy or suffering from diseases that do not impede their ability of self-care, they do not meet this condition and should be rejected immediately. 

●     Condition 2: unavailable care. Applicants must prove the necessary care cannot be obtained in home country. In practice, this enables the government to reject most applications for the sponsor could pay for sending their parents to care homes in home countries.

●     Condition 3: financial requirement. The sponsor must be able to support the applicants for 5 years without recourse to public funds. It is almost impossible to meet condition 2 and 3 at the same time. A sponsor without the means to support adult relatives will fall short of condition 3. However, high earners will fail to meet condition 2: the government assumes that they could fund care services in home country.

●     What makes it worse is a hidden double jeopardy. The government argues that adult dependants are still encouraged to apply for a standard visitor visa. But in practice, failed ADR applicants are unlikely to successfully get standard visitor visas as the government now has reasonable doubts over their tendency to immigrate. Failed applicants may lose their chance to come to the UK forever.

Questions

1Q: How does immigration law define a “family” and a “relative”? How have these definitions evolved over time?

1. The conception of family concerning immigration has undergone a dramatic change since early 20th century. The general tendency is to narrow down the concept of family by gradually marginalising the sponsor’s grandparents, siblings, cousins, nieces/nephews, aunt/uncles. This change took place in different ways in different countries, but they all serve only one purpose: to constrain the volume of immigration. The result is a contemporary concept of family immigration that covers only ‘close family members’ of three generations:

●     Sponsor’s parents (the elderly)

●     Sponsor + sponsor’s spouse and partner

●     Sponsor’s dependent children (underaged/adult)

2. While some criticise this tendency, arguing that this amounts to forcing immigrants to accept a foreign idea of family[1], most countries legally recognise this concept by providing immigration routes for close family members. However, this does not mean that the wide concept of family vanishes, as countries often make special arrangements for ‘relatives’ in a wide sense. For example

●     Australia 491 visa allows one to work in Australia for 5 years with sponsorship by a widely defined relative, including a brother, sister, adoptive brother, adoptive sister, step-brother or step-sister; an aunt, uncle, adoptive aunt, adoptive uncle, step-aunt or step-uncle; a nephew, niece, adoptive nephew, adoptive niece, step-nephew or step-niece; a grandparent, or a first cousin.[2] (i.e. I cannot apply for permanent residence for my nephew, but I can sponsor him for 491 visa.)

●     Canada allows the sponsor’s relatives (orphaned brother, sister, nephew, niece or grandchild) to immigrate in limited situations.[3]

3. Immigration laws of the UK underwent a similar change. Before 2012, family immigration was wide to include the sponsor’s adult children, siblings, grandparents, aunts and uncles to settle if there were exceptional compassionate circumstances and financial dependence on the UK sponsor. Home Offices reformed ADR in 2012 by removing aunts and uncles completely.

4. This does not mean UK provides workable routes for all close family members. In fact, the three harsh requirements added in the 2012 reformed make this visa category closed in effects. After Brexit, family immigration only effectively covers spouse/partners and underaged children. There is no effective route for adult dependants – parents, grandparents, siblings and adult dependent children – to stay in the UK for a long term. Compared with other countries, the practice of the UK immigration reflects a narrow, atomic nuclear family of a couple and kids; elderly parents are excluded. This is partly why Migrant Integration Policy Index 2020 scored the UK family immigration policy at 29, the second lowest among 56 evaluated countries.[4]

Do they reflect contemporary societal understandings of “family” and “relative”, in the UK and overseas?

5. The narrow paradigm of nuclear family reflects neither British social customs nor the government’s position. This is noticeable in the case of parents. No reasonable person from Britain would feel the moral duty to parents is fulfilled by leaving them in care home. Politically, Conservative, Labour and Liberal Democrats’ manifestos in 2019 general election all claim to value the role that older people play in family and endeavour to help working people care for their parents.

Are they consistent across immigration pathways?

6. The consistency might be superficial. For instance, the EU settlement scheme defines family members as follow:[5]

●     spouse, civil partner or unmarried partner

●     child or grandchild under 21

●     dependent child or grandchild over 21

●     dependent parent or grandparent

7. Despite the superficial consistency with the mainstream immigration route, the EU settlement scheme removes all sorts of financial requirements. Likewise, the requirement of ‘dependency’ is much lower than ADR. Applicants only need to provide

●     bank statements or money transfers that show you depend on them financially

●     evidence that you depend on them for health care, for example a letter from a hospital consultant

8. Hence, unlike mainstream pathway masquerading many bans as rules, the EU settlement scheme allows all close family members to settle. In opposition to the narrow nuclear family, the government implicitly adopts a more conventional conception of family for the EU settlement scheme.

2. Q: Does immigration law apply to every family the same? Do different rules apply to different circumstances? Are rules applied consistently in similar circumstances? What are the justifications for discrepancies?

9. This question touches upon the reason that British family immigration laws urgently need an overhaul: they were designed in the context of the EU to treat EEA and non-EEA immigrants differently, yet this is no longer practical due to Brexit.

10. ADR is the best example. Current ADR is a product of the 2012 immigration reform that treated EEA and non-EEA nationals differently. EEA/EU citizens, regardless of their age, could freely move between and settle in the UK without a visa, and the reformed ADR never applied to them. If an Italian working professional’s nanny wanted to move from Italy to the UK, she can come to the UK freely without restriction before Brexit; after Brexit, the nanny can apply for settled status once her children or grandchildren obtain settled status via the EU settlement scheme.

11. For this reason, the 2012 reform did not intend to stop family immigration completely, though it appears that way. It should be interpreted as a policy preference for EU immigrants than non-EU immigrants. This explains why similarly restrictive ADR policies can be found in some of the EU countries such as Germany, Norway, Sweden and Netherlands. EU membership makes it natural for countries to depend on other EU states as their primary source of family immigrants. They restrict ADR for non-EU applicants because they already endow all EU citizens with freedom of movement.

12. As the UK left the EU, this policy aim is no longer practical. Brexit and the close of the EU settlement scheme imply that EU immigrants will be treated in the same way as non-EU immigrants. New EU immigrants must meet the three harsh conditions to apply for ADR. Brexit now makes the UK a rare case globally, totally unexpected by the 2012 reform, that virtually no new immigrant – including fully naturalised citizens – can be joined by their parents.

Q: How do “mainstream” immigration pathways compare with “bespoke” ones introduced in response to geopolitical and refugee crises and how do the bespoke pathways compare with each other?

13. Bespoke immigration schemes (such as The Ukraine Family Scheme) usually make special arrangements for family members which removes hurdles of mainstream pathways. These schemes are morally praiseworthy indeed. But we find ethical problems with the discrepancy on family reunion.

14. First, this is a matter of fairness or civic equality. All immigrants ideally should fully integrate into British society as equal citizens. Capacity-based and need-based immigrants supposedly will end up doing the same job, paying the same tax and living together as equals. However, current laws do not grant them the family right – one of the most fundamental human rights – to the same extent. This potentially causes discrimination, alienation and inequality.

15. A deeper issue is whether the government sees family immigration as a type of humanitarian aid which should only be granted exceptionally. Home Office once defended current ADR rules for ensuring that help is provided to those genuinely in need.[6] This attitude is worrying. If we aim to create a society in which family is enshrined, letting people bring in their parents and other family members would be a basic right to which every immigrant is entitled, rather than exceptional ‘alms for the needy’.

4. Q: What are the fiscal and economic impacts of family migration policies, for instance in respect of the labour market, recruitment, productivity, and innovation?

16. Immigration policy cannot be reduced to a money talk. Even if the current restrictive family immigration policy saves public revenues (some doubt this though[7]), this comes with a high price of talent loss.

17. Global Competitiveness: Given the importance of family reunion, workers that the government wants to attract may not have a strong incentive to choose the UK rather than a more family-friendly country to settle. EU citizens may prefer EU countries where their family do not need a visa to live, and non-EU immigrants would prefer other much more family friendly countries to immigrate. They may come to the UK to work for several years, but they may also leave at their best age for family reunion. This table compares different countries’ immigration policies regarding parents, as this is the area where the UK family immigration policy departs most from other countries.

18. Loss of Talents: Many worry the potential loss of skilled workers caused by current family immigration scheme.

●     Scotland has suffered from population decline and outmigration for a very long time, which was alleviated only in the last decades by family immigrants from the EU and Asia. As many work immigrants do not settle permanently, family migration is crucial for the population and prosperity of Scotland. The current immigration laws put Scotland in an unfavourable position after Brexit.[14]

●     Professional associations believe overseas students and workers could be discouraged from coming to the UK. This is more noticeable in academia and NHS that rely on immigrant professionals. Unlike other jobs, long-term training required by academics and medical workers makes resignations rather costly for the public. British Medical Association (BMA) have urged the ADR rules to be reviewed since 2012[15], reporting that more than 6000 GPs have left the UK because they are unable to take care of their aged parents in the UK, more considering to leave someday, and more than 90% immigrants NHS workers they surveyed have anxiety over the inability to take care of their parents here, which may force them to leave the country for family duty. Given the current 100,000 vacancies in NHS and the year-long backlog, the need to reform ADR is very pressing.[16]

7. Q: In what circumstances may family immigration law and practice result in an extended (or indefinite) period of family separation or place families under stress in other ways?

19. In the case of adult dependants, the separation is unavoidable. Home Office data shows that from 2017 to 2020 only 35 ADR applications were approved at the first attempt. Over 96% of them were refused. Some finally succeeded after the difficulty and expense of an appeal lasting for several years. In 2017, Home Office did not issue a single adult dependent relative visa. Before the rule changes, thousands were approved. Family separation between children, sponsors and elderly parents will happen in nearly every case.

Q: How could they be adapted to prevent or shorten periods of family separation or be more accommodating of the wellbeing of families?

20. A long-term visa could be used to tackle this problem. Here are some examples.

●     Australia has a long queue of 103/143 parent visa (permanent residence) applications. The government launched 870 Sponsored Parent (Temporary) visa in 2019 that allows parents to stay in Australia for 3 or 5 years (renewable to 10 years) while waiting for the result of permanent residence application. Parents cannot work during this period, and the sponsor must have lived in Australia for at least 4 years.[17]

●     Singapore has a distinctive approach on ADR. There is no indefinite leave visa for adult dependents in Singaporean laws. Instead, parents are granted a renewable, Long Term Visit Pass that allow some adult dependants to stay for 2 years tied to the validity of the sponsor’s working visa. If the sponsor loses working visa in Singapore, the elderly parents may also lose the leave to remain.[18] Their spouse/children visa is also designed in this way.[19]

●     Alongside permanent residence, Canada has a ‘super visa’ for parents allowing them to stay for 5 years at a time in Canada.

21. Another possibility is regional visas that allow immigrants to stay only in one area. The Scottish Government suggested introducing a Canadian/Australian style regional visa system to encourage family immigration to Scotland.[20]

9. Q: How should family migration policies interact with the right to respect for family and private life and the best interests of the child?

22. Family policy now forces immigrants to make an inhumanely hard choice between work and family. If they choose job, the ethical duty to care for parents must be outsourced to care homes. If they choose family, they must leave the UK.

23. Children’s rights protected by UN conventions and the ECHR are also ignored. Despite the importance of emotional and practical supports provided by parents and grandparents, currently children from a migrant background – even if they hold British nationality -- are being denied the meaning interaction with grandparents and parents. This discriminatory treatment psychologically damages families and children. Anxieties are mounted upon families resulting in stress which is passed on to the children.

24. Given this, I think the best way to respect family and children’s interest is to enable family reunion rather than hamper it. This does not mean we should not limit immigration, which is unrealistic. But the selection of immigrants precedes family immigration. When we have chosen certain immigrants to settle, they should be given a family life as complete as possible. It is unreasonable to encourage people to settle while asking them to abnegate family by imposing draconian conditions.

Q: What can the immigration process learn from the family justice system and how could they best interact with one another?

25. Officers should also adopt a more sympathetic and comprehensive approach of evaluation, taking more factors into account, such as age, health and vulnerability of the applicant, the closeness of the family, the applicant’s dependence on family, cultural tradition and conditions in the country of origin.

26. In particular, officers could be obliged to consider to children’s opinions in evaluation, just as judges are obliged to consider children’s opinions in certain family law cases.

10. Q: How do family migration policies and their implementation affect the integration and participation in British society of (would-be) sponsors and their sponsored family members?

27. Human beings are social animals. They depend on others. Family is the group on which most people heavily depend, socially, emotionally and often financially. Unfortunately, British family immigration policy comes a point at which, for immigrants, prolonged and unavoidable separation in families seriously inhibits their ability to live full and fulfilling lives. People are deprived of the most fundamental need as a human just because of their immigrant identity.

28. This belies our commitment to an inclusive community of equals. How can immigrants explain to kids, ‘you cannot visit your beloved nanny weekly like your classmates, simply because you are an immigrant’? How can kids understand the force of duties, when they were told by the government that the duty to family can be fulfilled by the care that is paid for? If the law does not change, immigrants will always be expelled as degraded beings without entitlement to a complete family life. I therefore believe the outdated family immigration policies, especially ADR, not only hampers integration of immigrants into British society, but also communicates wrong moral messages to the public. Family reunion is not the alms for the needy; it is our basic demand as human beings.

September 2022