The Refugee and Migrant Forum of Essex and London (RAMFEL) — Written evidence (FAM0039)    

Introduction

  1. We write from the Refugee and Migrant Forum of Essex and London (RAMFEL), a legal charity providing advice to migrants in the community on issues related to immigration and asylum claims, welfare/benefits, access to housing and prevention of destitution, and integration support. We are accredited by the Office of the Immigration Services Commissioner (OISC), and are the largest charity providing specialist level 3 OISC advice in London.

 

  1. As part of our Refugee and Asylum Casework Team, we have advised and represented many refugees and people with humanitarian protection (HP) applying for family reunion with family members overseas. We have worked on behalf of both adult and child refugees, with the family members applying usually being pre-flight spouses, children (under and over 18), parents or siblings.

 

  1. In our family reunion work, we collaborate with organisations such as UNHCR; ICRC; IRAP; Together Now; Together with Migrant Children; Social Workers without Borders and other childcare and health professionals. We specialise in so-called “complex” applications, which are complex in the sense that those applying do not meet the Secretary of State for the Home Department’s (SSHD) narrow criteria to qualify for family reunion.

 

Summary

 

  1. Further to the Committee’s call for submissions, we request that the following be considered in relation to the existing family reunion provisions. We have specifically highlighted how the following issues with application rules, processes and procedures continue to separate UK based refugees from their family members overseas:

 

    1. The restrictive definition of “family member”.
    2. Inflexible and excessive bureaucratic processes needed to submit an application.
    3. The delays in processing applications, which are exacerbated by inflexible, burdensome and often unrealistic evidentiary requirements.
    4. The SSHD’s stringent adherence to her definition of “family member” and unwillingness to consider other familial relationships even when expert evidence is provided demonstrating closeness and harm caused by separation.

 

Submissions

How does immigration law define a “family” and a “relative”? How have these definitions evolved over time? Are they consistent across immigration pathways? Do they reflect contemporary societal understandings of “family” and “relative”, in the UK and overseas?

  1. The definition of ‘family members’ in UK immigration law is, in general, overly restrictive. In the context of refugee family reunion (under Part 11 of the Immigration Rules), as a rule only pre-flight spouses and children are considered ‘family members’. This excludes all other family members, irrespective of the specific circumstances. In many countries, such as Syria, broader understandings of family prevail, and often include a notion of greater duty towards or responsibility for family members, encompassing family members such as siblings and parents/grandparents. While Part 8 of the Immigration Rules has provisions allowing ‘relatives’ to apply (under Paragraphs 297 and 319X), the applicants must be children, thereby excluding family relationships between adults.

 

  1. Family reunion rules recognise filial relationships but only in one direction – parents are able to sponsor their children, but refugee children are unable to sponsor their parents. This has a disproportionately negative effect on child refugees.

 

  1. The passing into law of the Nationality and Borders Act 2022 has seen the introduction of Paragraph 319XAA of the Immigration Rules. This essentially allows relatives, who do not meet the maintenance and accommodation requirements, to sponsor children who are subjected to exceptional circumstances which should warrant a grant of leave to enter for the same duration as the sponsor (leave in line). As set out in 319XAA(1), relevant factors to consider whether there are exceptional circumstances include:

 

(a) they have no parent with them; and

(b) they have no family other than in the UK that could reasonably be

     expected to support them; and

(c) there is an existing, genuine family relationship between them and

     the UK based relative; and

(d) they are dependent on the UK based relative.

 

  1. Whilst bringing exceptional circumstances inside of the rules is a welcome development, it does little for those who applied for a family member to join them prior to paragraph 319X’s introduction on 28 June 2022. Any application lodged prior to this fell to be considered outside of the Immigration Rules.

 

  1. In fact, there was not even a specified form for such applications. The form we were using was the one designed for applications under Part 11 of the Immigration Rules (which is free) as this was the closest online form available. This approach is recognised in case law.

 

  1. Many such applications remain pending, and the SSHD could as part of her decision-making process consider them under Paragraph 319X. However, the law in effect at the time of submission is the one that applies, and in recently issued decisions, the SSHD has not exercised her discretion and has been refusing applications but directing applicants that they can reapply under the recently amended paragraph 319X. This is unnecessary if the end result can be achieved by simply permitting the initial application, but considering the delays in processing applications (see below) it is especially unreasonable and fails to account for the vulnerable situation many applicants overseas face and the harm caused to refugees in the UK by prolonged familial separation.

 

  1. None of the family reunion provisions is focussed on the needs of unaccompanied young refugees in the UK. These young people are usually unmarried and do not have children of their own, meaning none of their family members will qualify for family reunion under the existing restrictive definition of family members. The most significant family members in their life are their parents, or often their younger siblings. They will often have taken on responsibility for younger siblings, who may have also fled their country of origin without their parents and got stuck in a limbo in third countries where they are not safe and are not adequately cared for. In these limbo countries, children are at risk and their basic human rights are not respected, either because they cannot regularise their status or because the domestic refugee status does not afford those protections. Children in the UK who are willing to care for a sibling in such a vulnerable situation face a lengthy, onerous and expensive process to apply for their siblings, who often remain in danger throughout the long delays in preparing an application and awaiting a decision.

 

  1. These family structures, in which a sponsor’s closest family members are not spouses or children, exist in many countries, especially those where family structures are affected by conflict or other forms of persecution. For example, in places with mandatory/indefinite military conscription, or in active conflict zones where fathers are conscripted or killed, many children grow up without a father and form closer relationships with their mothers; elder siblings will consequently often take on more significant, pseudo-parental caring roles for their younger siblings. The existing family reunion rules though simply do not reflect this reality, meaning child refugees cannot sponsor their closest family members to join them.

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? 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?

  1. Family reunion application processes are overly restrictive. The continuing requirement to enrol biometrics before a decision on the family reunion application is made, which is insisted upon despite recent litigation in the Upper Tribunal in the case of R (on the application of SGW) v Secretary of State for the Home Department (Biometrics – family reunion policy) [2022] UKUT 00015 (IAC), creates inequality among applicants depending on their country of residence. Those residing in certain countries, including some which are extremely unstable and where applicants face significant risks such as Afghanistan, Somalia, Syria and Yemen, have no Visa Application Centres (VAC). This means that some applicants are unable to apply, or face dangerous, expensive and even illegal journeys to merely submit a valid application. Discretion is extremely rarely exercised to waive biometric enrolment requirements even though the SSHD’s internal guidance provides for this in certain circumstances. One of our Afghan clients, who was granted refugee status because the SSHD recognised that he collaborated with the British troops in the fight against the Taliban, applied for family reunion for his pre-flight spouse and children, all under 11 years old, in April 2022. We requested the SSHD to make a decision in principle and allow the deferral of biometrics (closest VAC in Pakistan) but the SSHD repeatedly refused to make a decision in principle which is against their own guidance and case law. The case is currently challenged by Judicial Review thus creating unnecessary delays and stress to the family.

 

  1. Some ‘bespoke’ immigration pathways operate entirely differently and allow for a much less onerous process. For example, the significance of wider family connections is recognised by the UK’s Ukraine Family Scheme. Under this scheme, UK sponsors can apply for immediate family members and ‘extended family members’, including: parents even where the sponsor is no longer a minor; adult children; grandparents and grandchildren; siblings; aunts and uncles; nieces and nephews; cousins; parents-in-law; grandparents-in-law, and even siblings-in-law (https://www.gov.uk/guidance/apply-for-a-ukraine-family-scheme-visa#eligibility). This expansive definition more appropriately reflects the breadth and variety of significant family relationships, and how conflict causes separation. The scheme also highlights the inconsistent approach adopted by the SSHD, which favours Ukrainian refugees over refugees forced to flee other countries, who have equally significant and extended family ties, and whose family members often reside in similarly dangerous circumstances.  The Ukraine scheme has a much wider scope than any other family migration route, and far more flexibility and simplified processes.

 

  1. Despite recognising the severity of the crisis in Afghanistan, Afghan nationals are not offered the same level of flexibility and are required to go through burdensome processes. The Afghan Citizens’ Resettlement scheme (as well as all the other UNHCR resettlement schemes) has no application process, which means that Afghan refugees in the UK are unable to use this scheme to apply for their family members who remain at risk abroad. (https://www.gov.uk/guidance/afghan-citizens-resettlement-scheme )

 

  1. Resettlement schemes are also time-limited, and often come to an end even though the circumstances in the country of persecution remain perilous. For example, the Syrian Resettlement Scheme ended in 2020 despite the ongoing civil war there. Syrian refugees are therefore unable to sponsor family members with the ease with which Ukrainians can. UNHCR resettlement schemes are not designed to ensure that refugees’ rights to family life are recognised: for example, no refugees were resettled under the priority category of ‘Family Reunification’ between January and July 2022 (https://www.unhcr.org/uk/resettlement-data.html). The SSHD often cites resettlement schemes in her refusal letters, however these cannot replace application routes for family members.

 

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

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?

  1. The nature of refugees’ circumstances is such that their family members are often in precarious circumstances or at grave risk while they remain separated, whether they are in their country of origin or in a third country. These circumstances compound the emotional strain of being separated from close family, as sponsors worry about their families abroad.

 

  1. Home Office and court delays are now though one of the greatest issues that refugee families face. Whilst the Ukraine crisis has strained the Government’s resources, refugees from other countries, including those where protracted and violent conflicts are ongoing such as Afghanistan and Ethiopia, should not receive prejudicial treatment as if their suffering was somehow not as worthy of protection.

 

  1. The service standard for refugee family reunion is in theory 12 weeks once a biometric enrolment appointment is attended (https://www.gov.uk/guidance/visa-decision-waiting-times-applications-outside-the-uk#join-family-in-the-uk). Most of our family reunion applications take 6 to 12 months to be decided. In more complex cases, the wait is longer, especially if the SSHD refuses the application at first instance and an appeal must be brought. And even when appeals are allowed, there are further long delays in issuing the visas. These delays leave vulnerable children, often unaccompanied, stranded and destitute, at the risk of kidnapping, trafficking and even refoulement. One of our client’s sisters was forcibly returned from Ethiopia to Eritrea last year, where she remains imprisoned as a child.

 

  1. Periods of separation could be shortened by increasing decision-making capacity and making decisions more quickly. The SSHD often takes an unreasonably long time to make decisions on family reunion applications, with several of our clients waiting at least 10 months for a decision. This is often compounded by unnecessary and burdensome requests for additional evidence before a decision is reached.

 

  1. Evidential flexibility is expressly mandated in SSHD’s policy, but rarely implemented in practice. However, in addition to the time spent waiting for a decision, refugees in the UK sponsoring family members from abroad suffer greatly just gathering evidence for their application. Due to the SSHD’s evidentiary requirements, applications are often lodged months after instructing legal advisors as expert evidence must be obtained. This creates an additional financial burden on sponsors (DNA tests for example cost around £500.00). Refugees, as a result of trauma and other integration challenges, are often unable to work for a period of time, thus having to rely on benefits. It is therefore very difficult for refugee sponsors to save money to afford all the costs surrounding family reunion applications.

 

  1. During this time, sponsors struggle to establish their lives in the UK, as they are in limbo waiting for family members to join them. They often suffer significant declines in their mental health and wellbeing, which prevent them from fully engaging in study, work or developing relationships, significantly decreasing their quality of life as well as their ability to contribute to UK society and economy. This is compounded by knowing their family members are suffering or are in danger. In one instance, the SSHD granted a visa to a vulnerable young refugee child who was joining his sister from a country where he remained unsafe and had recently been kidnapped and asked for ransom by smugglers. In a recent, very factually similar case, however, the SSHD refused an application for a vulnerable young girl left alone in a country which is currently undergoing a civil war to join her brother in the UK, despite evidence of their close relationship and the brother visiting her, at great risk to himself, due to his great concern for her wellbeing and safety. It remains unclear why the first application was allowed but the other wasn’t.

 

  1. Home Office decision-makers should be trained to properly assess the Article 8 rights of applicants and sponsors. In addition to an inconsistent approach, refusal letters often contain inaccurate information about the family’s situation, cite non-existent requirements, and refer to application types or resettlement schemes not relevant to the application. In a recent refusal letter, the SSHD noted that the applicant and sponsor had not lived together for 5 years prior to separation. Not only was this factually inaccurate, as evident from the information submitted, but there is no such requirement under Part 8 or Part 11 of the Immigration Rules.

 

  1. Better consideration of Article 8 family life matters by the SSHD in initial decisions would prevent unnecessary delay and further distress caused by going through the lengthy appeal process, which does not really act as an effective safeguard for desperately vulnerable individuals for whom time is a luxury they cannot afford. This is especially so though as several refusals of applications we received were later withdrawn by the SSHD whilst waiting for the appeal to be heard, with others being successful on appeal meaning the extended wait served no purpose other than prolonging the agony of separation.

 

  1. In our experience, when families are reunited, not only does this allow the sponsor to finally “get on with their life” but it also enables them to help their arriving family members to more rapidly and effectively integrate into UK society. Making it quicker and more straightforward for refugees to reunite with close family members, irrespective of their specific relationship, would greatly benefit UK based refugees and broader society as they would find integrating and contributing far easier than remaining stuck in limbo for a prolonged period, as recognised in the case of AT and Another (Article 8 ECHR – Child refugee – family reunification) Eritrea [2016] UKUT 00227 (IAC).

How do family migration policies affect children separated from one or both of their parents (or other relative)? How do families separated by immigration law use modern means of communication, and what is the impact of this use?

  1. We have witnessed how children separated from their parent(s) or siblings have suffered very negative consequences on their mental health and growth. Inevitably, children do not have the ability to easily adapt and cope with being separated from one of their parents or de facto caregivers for great lengths of time.

 

  1. Whilst separation from their siblings would always be likely to cause distress, for child refugees who have assumed significant care responsibilities for younger siblings, the pain is particularly acute. This contributes to child refugee sponsors developing feelings of guilt and shame for leaving the family behind. Most of our child refugee clients have been assessed by skilled childcare professionals we work with as having developed mental health difficulties, going from sleeplessness/insomnia, low mood to depression, loss of appetite and even suicidal thoughts.

 

  1. The depth and the strength of a physical / day to day relationship is completely lost whilst separated. Despite the SSHD often claiming that relationships can be maintained by modern communication means, connectivity and access to such devices are not as prevalent in less wealthy parts of the world. It is also not uncommon that internet connection is interrupted during conflicts, such as in Sudan last year, or that communication is controlled by the State thus making any contact with the family members incredibly dangerous for them. Additionally, often the only device available to a vulnerable applicant may belong to someone else, including people who have been abusing and trafficking them, making the communication either a tool for ransom or in any case, unreliable. We are currently working with four Ethiopian children, orphans, aged between 9 and 15, who are living with a family who has forced them into domestic servitude, forbidden them from going to school and accessing medical care, as well as sexually and physically abused the older girls. The family controls how and when they can speak to the older sister.

 

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

  1. As per section 55 of the Borders, Citizenship and Immigration Act 2009, the SSHD needs to consider the best interests of children in the UK when assessing leave to remain applications. For children outside of the UK, the Courts have directed the SSHD to apply the “spirit of the duty” (as per Mundeba (s.55 and para 297(i)(f)) [2013] UKUT).

 

  1. The UK is party to the United Nations Convention on the Rights of the Child, which sets out recommendations for the UK authorities to consider when it comes to children seeking asylum and/or separated from their family members. The Every Child Matters: Change For Children and the UNHCR Guidelines on Assessing and Determining the Best Interests of the Child reach the same conclusion, stressing the importance of family life and encouraging the relevant authorities to facilitate this when families have been separated by conflicts or other reasons.

 

  1. However, none of these provisions places a statutory duty on the SSHD to treat the best interests of children abroad as a primary consideration when deciding family reunion applications. Therefore, in practice, the SSHD often doesn’t, affording at best a cursory glance to any children’s best interests, despite evidence of the damage caused from childcare professionals and despite the wishes and desire of child refugees themselves being clearly outlined. Legislation should be amended so that section 55 applies to children abroad too, which will ensure the SSHD does not neglect such children’s welfare and best interests when they are applying to join refugee family members in the UK.

 

15 September 2022