Kent Law Clinic, University of Kent — Written evidence (FAM0030)    

1. The Kent Law Clinic is a law clinic based at the University of Kent which provides free advice and representation to local people in collaboration with law students studying as part of their undergraduate degree. The clinic practices in a number of areas of law including immigration, asylum, family, employment, housing and welfare benefits.

2. In this response we confine ourselves to addressing questions 7 and 10 on how migration policies affect families. These answers will be focused on two types of family application – entry clearance applications by refugee family members, and applications in the UK by parents of British or long resident children who are relying on the immigration rules which fulfil the UK’s obligations under Article 8 ECHR. In doing so we will draw on our casework experience over the last decade.

3. The Kent Law Clinic has particular experience of dealing with refugee family reunion cases involving applicants from Eritrea, Syria and Afghanistan. We also regularly assist single parents and families of British or long resident children who are on a 10-year route to settlement.

7)               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?

Extended Separations

4. The current processing of family migration applications regularly leads to lengthy periods of family separation.

5. Firstly, there are delays at every stage of the process. The Kent Law Clinic deals with complex refugee family reunion applications (i.e.: those which are made under immigration rules 298, 319X or outside the rules). Such applications often involve trying to reunite family members separated by conflict and frequently concern children or young people living in precarious situations in third countries with very limited support. Many of the problems we note below, have already been widely documented in various reports.[1]

6. Initial applications often take 6 months for an initial decision. They are then regularly refused, often in poorly reasoned refusals, necessitating a further lengthy appeal process. Appeals can be expedited, but even then, it may take a further 6 months for the appeal to be heard and decided. Finally, even once an appeal is allowed, it is our experience that decisions are not promptly implemented. On a number of occasions, we have had to resort to emailing MPs or sending a pre-action-protocol letter to threaten judicial review in order to get a decision implemented. We have had cases that have taken between 18 months and 2 years from the initial application to implementation of the decision. We therefore have to advise potential clients that they will need to be prepared for at least a year’s wait.

7. The whole process results in the extended separation of family members, with the UK based family member facing an incredibly anxious period of waiting, concerned about the safety of their relative. In the case of applicants from Eritrea, these are often young people residing without lawful status in Sudan or Ethiopia at potential risk of trafficking. When delays occur, sponsoring family members are continually concerned that their relatives will lose faith in the process and fall prey to offers from traffickers to take them to Libya. In the case of applicants from Afghanistan, they may be residing in a precarious situation in Iran or even in hiding in Afghanistan.

Decision making

8. Decision making in refugee family reunion cases is still not good enough, with many of the problems identified in the Chief Inspector of Borders and Immigration’s 2020 report still remaining.[2] The majority of our family reunion cases have been refused at first instance, despite careful case preparation, and so far, all have been allowed on appeal. In some cases, the Home Office presenting officer unit has conceded the case prior to the hearing. In one case, the Home Office proceeded to the hearing, but then made no submissions in support of their refusal letter. In several cases our clients have been awarded wasted costs by the tribunal in recognition of the fact that the Home Office should not have sought to defend the case.

9. The consequences of the additional delays caused by having to appeal can be very significant for the applicants. In one of our cases, a 16-year-old girl who was living with a family in Sudan lost the support of the family during the course of the appeal and was forced to live with several young men that she did not know and whom she feared would assault her.

Problems accessing the application process

10. A further issue that delays the application process is the difficulty in facilitating the applicant to attend a visa application centre to provide biometrics. Whilst this is not a problem for standard family migration applications, for refugee family reunion applicants it can be a major impediment. In the case of young people in Sudan or Ethiopia it is necessary to work out how they can get safely to Khartoum or Addis Ababa. We had a recent case of two vulnerable young Afghans with no family in Afghanistan who had to travel to Iran in order to make the family reunion application in Tehran. They managed to obtain a time limited visa to enter Iran. They were then told by the Visa Application Centre (VAC) in Tehran that their passports had to be retained. This is not a practice that is followed in most other VACs, but the Tehran VAC has insisted. They have now managed to obtain their passports back in order to return to Afghanistan, so they can renew their visas and then return to Iran. However, they have been told that whilst they have their passports, their application is on hold and cannot be processed.

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

11. It is inevitable that where there is a system with many people making applications and limited resources provided to process them, there will be delays. Clearly, we would like to see more resources put in to prioritise applications by refugee clients. However, even if no further resources were provided there are steps that could be taken to improve the way that these applications are processed.

12. Firstly, the process could be redesigned to accommodate the logistical difficulties that applicants, particularly lone children, face in providing biometric information. The recent case of R (on the application of SGW) v SSHD Department (Biometrics – family reunion policy) [2022][3] highlighted that the Home Office have a discretion to waive biometric requirements. It should be possible for applicants from dangerous countries such as Afghanistan to make an application in principle, and once accepted, then travel to a neighbouring country to provide their fingerprints, undergo any necessary security checks and be provided with a visa prior to leaving for the UK. This should not need lawyers to have to identify particularly cooperative members of the Home Office, or to have to contact MPs to intervene or to threaten judicial review. A system could be put in place to recognise that applicants for refugee family reunion need to be supported. This would need a change in institutional mindset to recognise that the aim of refugee family reunion policy should be to facilitate applications by refugees’ relatives, since this will benefit their wellbeing in the UK and so encourage more successful integration. At present it feels like the policy is to discourage such applications by erecting bureaucratic hurdles which have to be overcome.

13. Secondly, decision making needs to be improved to avoid the need for appeals that will obviously succeed. This is an ongoing issue which numerous writers including the Chief Inspector of Borders and Immigration have commented on, but an obvious intervention which the Home Office needs to implement is improved feedback from those dealing with the appeals to those making the initial decisions, and greater incentives for getting decisions right first time.

14. Finally, in refugee family reunion cases, the Home Office should have a unit that implements allowed appeals as a priority. It is simply unacceptable that in cases where a judge has found that there are “serious and compelling family or other reasons why exclusion of a child is undesirable” (rule 298/319X) that that child should then be left for several months with no sense of urgency to implement the decision. Again, this should not require the continual need for lawyers to intervene through threatening judicial review or through contacting MPs.

Other ways that families are placed under stress

15. For family migrants who have been placed on a 10-year route to settlement, the whole process of repeated applications over a 10-year period leads to significant stress. We have been working with such clients for the last decade now, since the family migration rule changes were introduced in July 2012. We see this daily in our interactions with our clients, who express a sense that they are continually in opposition to a system that wants to exclude them and are constantly having to battle to stay afloat.

16. Firstly, families are faced with the constant uncertainty of whether they will be able to renew their leave again. We see clients who are anxious about whether they will be able to find a lawyer for their next application, and whether we will still be available to assist them in 2.5 years’ time. Clients are anxious about whether they will qualify for a fee waiver for their next application. A family of 2 adults and 2 children now needs to pay £9,662[4] every 2.5 years to renew their leave to remain, a prospect that even before the cost-of-living crisis was difficult. Since the case of Dzineku-Liggison [2020],[5] the Home Office appear to be granting fee waivers more readily, which is to be welcomed. Nevertheless, families worry about the consequences of being refused a fee waiver and being unable to pay. They worry that if they are able to find well paid jobs and save a small amount of money for themselves, they may not succeed in a fee waiver application. We have had clients who have saved small amounts for their children in child savings accounts and worry that this will be required to fund the children’s visa fees.

17. If an applicant fails to submit their application in-time they will immediately lose their immigration status and face the other consequences of the hostile environment such as no right to work, rent or access public funds. In such cases, where the underlying human rights claim is strong such as the single parent of British children, it is inevitable that a future immigration application will be granted, allowing them to start again on the 10-year route to settlement. But they will have endured a period of many months waiting for the application to be granted, during which time they will have no rights and will end up facing destitution.

18. We have had cases of applicants who have been on a 10-year route but owing to mental health or other difficulties have missed the extension deadline or applied on the wrong form and so fallen off the route. Their subsequent applications have been granted after they have endured a period of many months’ destitution, requiring support from local charities. Whilst it is legally the applicant’s responsibility to make sure they apply within the visa expiry deadline and meet all the requirements for a valid application, having a system that creates so many opportunities for failure does not benefit society. Such people are being allowed to remain, but their ability to successfully integrate into the UK is being damaged by their insecure status.

19. Secondly, even when applications are straightforward, our clients become anxious at the lengthy delays in processing their extension applications which prevent them from being able to travel and leave them without a valid biometric permit. Even basic extensions on a 10-year route are now taking over 6 months. During this delay, their leave is extended by section 3C Immigration Act 1971. However, as they now have an expired biometric card, some clients find it hard to change employers, when new employers are unaware or unwilling to use the Home Office Employer Checking service to verify their status.

20. Thirdly, there is the stress caused by future changes of circumstances which can lead to an applicant no longer qualifying on a family route. For example, under the 10-year parent route a person can be granted leave if they have a qualifying child. When the child turns 18, they can only continue on this route if the child has not formed an independent family unit and is not leading an independent life. This means that for a parent who begins this route when their child is 15, they would need to ensure that their child does not begin an independent life until they are over 25 once the parent has acquired settlement (ILR), otherwise the parent risks being unable to continue on the 10-year parent route. In the case of a person who cannot afford the settlement fee, they will need to continue to make further leave applications, which will require their child to remain dependent on them, until such time as the parent can obtain leave on another route (e.g.: as a spouse or based on 20 years’ private life). This creates a tension between the interests of the parent to retain leave in the UK, and their child who may wish to begin their own independent life. It could be resolved by simply removing the need to show continual dependence and accept that once a parent has been granted leave to be with their child, it would be inappropriate to require them to leave the UK the moment the child begins to live independently.

21. Fourthly, the standard condition on the 10-year route is that applicants have no recourse to public funds. To gain access to public funds, an individual case has to be made that access should be granted based on a risk of imminent destitution or based on welfare concerns for the child. We have acted for many cases of single mothers with several British or long resident children born in the UK who have no access to public funds. This results in a cohort of British children growing up in poverty, without access to child benefit, free school meals and the same support that their peers with settled parents are able to receive, simply because they have the misfortune to have a non-citizen parent who has yet to acquire settled status.

22. In our experience we are normally able to get such clients access to public funds through an application to the Home Office under Immigration rule Appendix FM GEN1.11A. However, this involves further work from us to articulate why the applicant satisfies the rules and also involves a delay in the claim being processed. We have been referred cases where such clients have ended up in complete destitution and have had to be housed by social services in a hotel under s17 Children’s Act duties, because they have lost their employment and then been unable to access public funds. This then results in additional costs being borne by the local authority until the application for access to public funds by the Home Office is approved. Inevitably, this has a very negative impact on the children who are forced to live in temporary accommodation.

23. Finally, there is currently no fee waiver in place for those on 10-year routes who are now eligible to apply for settlement (ILR). We understand that the fee waiver was introduced in order to comply with Article 8 ECHR as there must be the possibility of making a human rights application for limited leave, whereas the Home Office believe that there is no such obligation to grant settled status. However, now in 2022, 10 years after the 10-year route was introduced, there is a real danger that some families are never going to be able to afford to apply for settled status. They will therefore remain on a never-ending path of limited leave, having to reapply every 2.5 years, potentially indefinitely. In some cases, the children will now be able to apply for a fee waiver for British citizenship on the basis of 10 years’ residence since birth. However, the parents and other children face the prospect of remaining on limited leave for many years. The need to reapply for leave will therefore be a continual source of anxiety for such families.

How could they be adapted to be more accommodating of the wellbeing of families?

24. In the current economic climate, we suggest that it would be appropriate to review the policy of placing a no recourse to public funds as standard condition on the 10-year parent route. Given the current cost of living crisis, a large number of families on these routes are going to require access to public funds. This route is by definition for those who need to rely on their Article 8 right to family life, either because they were in the UK with no leave to begin with, or because they have been unable to meet the maintenance and accommodation thresholds. It has nevertheless been decided that it would be unreasonable to expect the family to leave the UK, because the child is either British or has been long resident and is thus well integrated into life in the UK. This means that such families are going to remain in the UK for the foreseeable future. They should therefore be assisted fully to integrate into life in the UK, and their children should have the same opportunities as other British children. Denying them access to public funds until they make an additional application to the Home Office can serve no useful purpose. Even once the condition has been lifted, they only have the same entitlement to public funds as anyone else and need to pass the appropriate means test.

25. We also suggest that the current 10-year route for family migrants should be reviewed. Requiring parents of British children and spouses of British citizens to endure 10 years of uncertainty, precarious immigration status and repeated immigration applications with the associated fees can only have a negative impact on prospects for integration and community cohesion. We suggest the current system of 4 periods of 2.5 years leave be replaced with a single 5-year probationary period, followed by the grant of settlement, by analogy with the current requirements for refugees, workers and the EU settlement scheme. This would provide an opportunity to review a person’s circumstances prior to settlement including a criminal record check, but significantly reduce the stress placed on families at present. It would also avoid the need to continually expend resources on processing fee waivers and extension applications. This has now been introduced for children making human rights applications based on private life under new Appendix PL. It would make sense to apply this to other family members who are recognised as having human rights-based claims to remain.

26. At the very least a fee waiver should be introduced for those making applications for settlement (ILR) after 10 years. It is surely an unsustainable position, for the Home Office to have to process an increasing number of extension applications every 2.5 years.[6] As will be set out below, such an approach will have a negative impact on integration and social cohesion since these families will never feel they have been finally accepted into UK society and will not be able to obtain citizenship.

10) 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. As set out above, in both these areas which we have discussed, the current policies have negative impacts on the ability of both sponsors and their family members to successfully integrate into British society.

28. In the case of refugee family reunion, it has been well documented that family reunion is an important precursor to the ability of refugees to be able to integrate into host communities, in that the continual worry about family members left behind prevents refugees from being able to feel secure and to focus on the future in their country of asylum.[7] We have had many cases involving young refugees who have expressed their feelings of being unable to focus on work or study as they are too preoccupied by worry for siblings or parents who they are in contact with and who they know are living in unstable or dangerous situations.

29. In the case of those on routes to settlement, legally declared to be ‘precarious’,[8] it has again been well documented that immigration legislation can be designed to facilitate integration or to obstruct it. Indeed, with regards to those with criminal convictions who are only able to remain due to Article 3 ECHR protections, it has been explicitly acknowledged in litigation that the requirement for continual repeat applications is a type of “roadblock” that is placed in the way of such people to prevent them from becoming settled, when it is the ultimate intention to remove them from the UK when possible.[9] Furthermore, the hostile environment measures of the Immigration Acts 2014 and 2016 were consciously designed to prevent integration of those living in the UK without a lawful status by denying them access to the basic resources needed to live a dignified life in the UK.

30. However, in the case of those on 10-year routes to settlement – these are people whom the Home Office have accepted have human rights claims to remain based on their family life. For those with children, this position is highly unlikely to change over 10 years and so the reality is that these families will be remaining in the UK for the foreseeable future. Those with British children will continue to make the UK their home. It would therefore be sensible public policy to facilitate their integration into the UK. As such there really is nothing to be gained from putting “roadblocks” in the way to their integration - by creating repeat situations where they risk losing their immigration status and finding themselves in the hostile environment. Yet that is the effect of requiring continual further immigration applications. The denial of access to public funds such as child benefit puts such families at a disadvantage compared to their neighbours and prevents them from having the ability to provide their children with a similar standard of living to their peers. The need to continually save for future immigration fees, effectively amounts to a further tax on them because they are yet to obtain settled status.

31. The lack of ability to get settled status for those who cannot afford it may well prevent some from ever obtaining British citizenship. The long-term consequence of this is a class of people, with a permanently precarious immigration status, who are long term residents of the UK but are unable to participate in UK society on equal footing with citizens. This serves no useful purpose. The Home Office should review the purpose of these routes to settlement, in favour of designing family migration law to facilitate integration and a path to citizenship for those who are highly likely to remain in the UK.

13 September 2022