F. Twist— Written evidence (FAM0043)    

Introduction and summary

My background:

  1. I am an immigration advisor and case worker in a not-for-profit setting in Halifax, West Yorkshire (St. Augustine’s Centre.) As an organisation, we provide a range of services aimed to support many migrant populations, but especially people seeking sanctuary in the UK. Within my work providing immigration advice and casework, I support individuals with a range of immigration issues, but especially with regards to Refugee Family Reunion. I am basing my response to this call for evidence on my experience in this field over the previous 1.5 years in this specific area.

 

  1. The main reason for my submitting this evidence is to help evaluate and improve our provisions for family migration and reunification in the UK, and address some recurring points that have become key issues for many of the families we support. In addition to this, I am interested in the comparison of different family migration routes, and how we have responded to sudden crises such as the Afghanistan takeover and the war in Ukraine. I want to provide further insight and evidence as to the practical and realistic effects the current policies and legislation surrounding family migration have on the families concerned, especially their children. Finally, I want to emphasise our moral and legal commitment to protect and safeguard children in immigration decisions, and highlight the current practices in place aimed at doing so, along with some areas in which this could be improved.

 

  1. This response focuses first on the definition of family and relative found in the immigration law of the UK. It considers how these definitions differ for different routes and circumstances, and provides a brief analysis on how these definitions match up with current reality for many families.

 

  1. Next, the response considers how immigration law generally applies to families and analyses it in a similar fashion. There is a specific emphasis on noting areas that treat families differently because of their ethnicity.

 

  1. The response then compares mainstream and bespoke immigration pathways and how families are affected by each, highlighting the strengths and weaknesses of both.

 

  1. The response then moves on to consider the highly debated Minimum Income Requirement, its aims, whether it has meant its aims, and how this affects families both inside and outside of the UK, and UK society as a whole.

 

  1. The response then analyses the effects of family migration in depth. The response considers the impact on the UK, particularly fiscally, and on families. There is a specific emphasis on how children are impacted by UK immigration law despite our commitment to prioritising their Best Interests.

 

  1. Finally, the response outlines some areas for improvement within immigration law based on problems we have seen in the sector and that have been reported to us by our clients, often in distress.

 

Section 1 - the design of family migration law

How does immigration law define family and relative?

  1. Families subject to immigration law appear to be affected by its definitions in 2 ways: firstly, to be permitted to immigrate to the UK, a given family member must demonstrate, and continue to demonstrate, that they fit the written definition of a spouse, partner, child, etc. found in the Immigration Rules themselves. Secondly, only certain family members are allowed to come to the UK through the specific routes of the Immigration Rules, so an individual’s family makeup post-migration is defined by the eligibility criteria defined my immigration law.

 

  1. There is an emphasis on certain family members in both of the ways the immigration law defines family, in particular partners and their children. This makes it more difficult for families who do not fit within the traditional view of a nuclear family - a married or at least cohabiting couple and possibly their children - to immigrate to the UK. Alternatively, some families are faced with the choice between whether to stay in their country of origin, perhaps in difficult and even dangerous situations, as a complete extended family unit, or of the family members that can meet those definitions finding a new life in the UK. This is an extremely difficult choice and causes a lot of stress for all of the family members, including children of the family who are often not old enough to understand why these things are happening, and why they cannot all stay together as they used to.

 

  1. This also has a specific impact on those who have been resettled on protection pathways or who have claimed asylum in the UK. Once in the UK, an individual may make enquiries into reuniting with their family, who may have their own protection needs but be unwilling or unable to make the difficult journey to the UK without formal assistance and recognition, only to find they are unable to. Family members, including those with vulnerabilities and children, are left stranded. The UK based family, who could be vulnerable or a child themselves, face the stress, isolation, and other psychological consequences of being continuously separated from their family and maybe living alone in the UK.

 

  1. This specific emphasis on nuclear families does not always allow for other changes that may occur within a given individual’s life, to key examples being the death of an overseas family member with dependents or the deterioration of an aging parent’s health.

 

  1. There are few routes for children of wider family members such as nieces or nephews, or even siblings, to immigrate to the UK to join family and the routes that exist have highly specific, often financial, eligibility requirements. So if the biological family or official guardians of an overseas child die or are no longer able to care for the child, the UK family member may be prevented from taking over their care, even if they are better placed financially and practically than anyone else connected to the child, because of the definitions of the immigration rules.

 

  1. As there is very little provision for adult family members, with the exception of the Adult Dependent Relative route which is notoriously hard to succeed under, those living and working in the UK are again faced with a choice: this time of staying in the UK and being unable to support their aging or even dying parents or elders, or leaving their life, relationships, and work in the UK to join family overseas. This has particularly affected people working in the healthcare sector, to the point that the British Medical Association have written to the Home Secretary about their concerns. In turn, this impacts the UK more widely, by the loss of a valuable worker, often highly skilled, and any training invested in that worker. There are already significant labour gaps in various sectors, and this situation may act as a deterrent to potential immigrants to the UK, or limit their likelihood of settling permanently.

 

  1. As family migration ties an individual’s immigration status to their familial relationships, families may struggle to deal with changes to their family life or makeup or have less options to resolve issues within a family. This is particularly the case for the dependents of an individual with status in the UK, such as their spouse or partner. The death of their Sponsor, or a desire to separate, leaves the dependent family member in a precarious position. Often, they must quickly find another way to satisfy an immigration route or return to their country of origin. This, again, becomes a source of stress and worry for the family, affecting their emotional and sometimes physical health. Working members of the family may struggle to perform their work effectively, or find it more difficult than usual to balance their responsibilities as an earner and Sponsor with their emotional bonds with their family.

Are these definitions consistent across immigration pathways?

  1. Different families are effected differently by these definitions within immigration law because the definitions differ depending on the route the family find themselves on, often a result of their circumstances than a choice on their part, and sometimes the country of origin of the family. While extended family members, generally, are not provided for and are therefore excluded from the usual definitions within the Rules, a notable difference has been the UK’s response to the war in Ukraine. Appendix Ukraine Scheme contains its own bespoke definitions of many family members, including aunts, uncles, cousins, grandchildren, grandparent, nieces, nephew, and contains a wider definition of stepparent. Thus, the feasible future family unit for an individual being resettled from Ukraine, as opposed to elsewhere in the world including Afghanistan, despite there also being huge upheaval, looks very different and potentially more diverse. This has a knock on effect at every other stage of their immigration and settlement journey.

Do these definitions reflect contemporary societal understandings of family and

relative?

  1. Due to this narrow definition of family, there is some incongruity with the range of societal and cultural norms surrounding the size and makeup of family units. While the traditional majority family unit in England had, for some time, been a nuclear family, there is evidence to suggest this is no longer the case. For example, there have been an increase in unmarried partners (who may or may not be able to or choose to cohabit), an increase in non-heterosexual family units, and other trends departing from the nuclear family. Anecdotal evidence suggests children are living at home, with their parents, for longer and do not necessarily form their own family units as young, or at all, compared to previous generations. This may become even more common as the cost of living continues to increase and many young people are priced out of owning their own home for increasing amounts of their working lives, if at all. There are then further differences influenced by the country of origin, culture, religion, and societal norms a family exists within. By limiting the definition of a family, especially the realm of family that may feasible join a UK based family member, to the nuclear family, the Immigration Rules fail to recognise the diversity and fluidity of family units in the modern and multicultural era.

Does immigration law apply consistently to every family?

  1. As with the definitions themselves, the application and actual impacts of immigration law on any given family depends on the existence of and position in the family of a UK based individual, who can act as a Sponsor or primary Applicant. Families of British Citizens may, though not always, be impacted to a lesser extent by immigration law and its enforcement, including hostile environment powers, than others. Families with precarious status, as opposed to settled families, are effected much more by these policies, particularly due to the prolonged waits for a final decision for some families, difficulties accessing free and reliable advice / representation, and the lack of specific deadline on when they will find out. Similarly, families who have leave to remain for a specified period, but who are on the journey to settle in the UK, are subject to immigration laws and its definitions for long periods of time especially for those on 10 year routes to settlement. This will become even more acutely felt as the differentiation between people seeking sanctuary based on the route they were forced to take on the UK becomes more common due to the operation of the Nationality and Borders Act (NBA).

 

  1. Where the Immigration Rules concerned are the same, they are not applied consistently. For example, only individuals educated in certain countries are able to transfer their skills and education, or satisfy English Language requirements without taking a test to prove it, even though there are many majority English speaking countries not including within the list of accepted ones. Only nationals of certain countries are required to undergo tuberculosis screening, often at their own cost. More recently, it has become clear that the insistence that all Applicants undergo biometric enrolment, justified on the basis of security despite there being a discretion to waive the requirement, is not applied to all families equally. Many families may, for a variety of reasons, find it difficult or impossible to attend in person at a Visa Application Centre to provide scans of their fingerprints and their photographs. It may be an extremely long distance, there may be safety issues involved, there may be logistical issues, or, as is the case for countries such as Afghanistan and Burundi, there may not be a Visa Application in-country to attend. Where there is no in-country Visa Application Centre, an Applicant will be required to travel into a neighbouring country to do so. If they cannot do this safely or legally, they cannot attend the Visa Application Centre, and therefore cannot provide their fingerprints. This becomes a cycle. Historically, the Home Office have been strict about this ‘requirement’ and often refused to use any discretion in the matter. However, individuals fleeing the war in Ukraine have not been required to enrol their biometrics until they are in the UK. Thus, the family of a UK based Sponsor from Ukraine and from Afghanistan, for example, will be affected to totally different extents.

Section 2 - mainstream and bespoke pathways

  1. As the bespoke pathways are formed in response to a specific event or crisis, they are formed quicker and often allow for quicker movement and resettlement of individuals. They can be particularly useful for prioritising very vulnerable populations, as was seen with the Afghan Citizens Resettlement Scheme. Applying under a mainstream immigration route would often be too slow to protect these families. However, due to the fact that these schemes are often formed as a response to an urgent need, there can be issues with rollout, documentation, and appropriate welcoming when people arrive under the schemes. In our work, we have seen a large number of Afghan individuals and families living in hotels for long periods of time, with sometimes only a blurry stamp in their passport to demonstrate they are permitted to be in the UK. Due to the hostile environment measures immigration law also imposes on families, there are often further issues down the line for the family when it comes to settlement, particularly demonstrating their lawful residence in the UK. The speed of rollout may also leave gaps in safeguarding and oversight, as we saw with the Homes for Ukraine scheme, where individuals were almost left entirely to their own devices to arrange placements. Some potentially unsuitable and dangerous placements became more and more common, such as young lone women finding a home with single men that they did not know prior to coming to the UK.

 

  1. Mainstream routes often require families to meet more numerous and specific eligibility pathways than a bespoke scheme might, but cover a wider range of circumstances. By comparison, bespoke schemes in response to a crisis must, at some point, draw a line between those who most need the assistance, and the general population of a country in an unstable situation. This line is dependent on the decision of the government in response to that crisis, and disadvantages some families.

 

  1. Mainstream routes offer different entitlements upon arrival, a key one being the various rights and opportunities to family reunification found in immigration law. For example, those recognised as refugees through the general asylum system have the right to reunite with their family under Refugee Family Reunion. People who are resettled through mainstream pathways like the Gateway Protection Programme also carry these rights, but other routes such as the Afghan schemes do not, which means families become separated. Where schemes are capped, this problem becomes more acute. An individual may simply not be permitted to bring their entire family, nuclear or not, to the UK.

Section 3 - The minimum income requirement

  1. On the face of it, the purpose of the minimum income requirement was to ensure the families coming to the UK can be self-sufficient and will not be a burden on public funds, so the UK saves money and bolsters its economy. The other aim was to reduce the number of family visas issued and therefore the number of family migrants coming to the UK. The available statistics show that the number of these visas issued has not reduced, so the latter aim has not been met.

 

  1. In a blunt way, the minimum income requirement does meet its other purpose. The required income is set higher than what many families in the UK have to live on. If a family coming to the UK has children, they must have extra funds to support the children. By fixing an amount of income a migrant family has available, the UK has ensured they will not need to claim benefits or other public funds to support themselves.

 

  1. However, the UK economy is impacted by more than just who is using public funds. Many families in the UK, whether UK born or migrant families, may use public funds and yet contribute in terms of their skills (as many working families are not paid enough to be self-reliant, despite having one or both parents working full time.) They may volunteer in the community, play a role as a caregiver, and rear children that go on to become the next generation of skilled workers. The minimum income requirement fails to take into account any contribution other than their income and means these contributions are lost from the UK, separates families, and prevents families having true freedom of movement.

 

  1. The minimum income requirement does not fit within the current economic conditions families around the world, including in the UK, are trying their best to navigate. There are a number of essential professions in which recruitment is at a low and is extremely difficult, due to the working conditions, low pay, and the cost of inflation fast outpacing wage growth. This is especially the case for those who are being paid Minimum Wage, for example those in the care work sector. Individuals who have key skills we lack, cannot recruit, or struggle to retain, might come to the UK, get a job, start contributing their skills, wages, and taxes, only to find that the wage they are being paid as specified by the UK Government is not enough to meet the income they need under immigration law to have their family with them. This is a huge deterrent to many. When such people decide to again leave, or are deterred from coming to the UK in the first place, the UK loses the benefits of their labour, their wages entering the economy, any training and experience they have, and the taxes they and their family would have paid in the UK.

 

  1. As well as this, the minimum income requirement can split families up, prevent them from being reunited, and create forced single parent families, with one parent overseas unable to join their family, and the other balancing all of the responsibilities for maintaining a home, looking after their child, maintaining their relationship with their spouse or partner (while potentially remembering to document all of this as evidence for the Home Office when they do try to reunite), all while trying to ensure they work enough hours or find a ‘good enough’ job to meet the income requirement. Where children are young, this means there is no additional adult to cover childcare, forcing parents to work less hours (and therefore earn less, and pay less in tax) or rely on subsidised childcare, if any is available, and thus in an indirect way be reliant on public or charitable funds. It is also puts a high level of strain on the earner, which can have health and psychological impacts, especially when the situation continues for a prolonged period of time.

 

  1. The requirement, and the evidence required to show it is met, could be made fairer and more practical by bringing in line with the actual and realistic wages that a family reliant on the UK Minimum Wage has to rely on. It is not more expensive to maintain a child born elsewhere, once they are in the UK, and conversely, British born children equally deserve their basic needs to be met - if the Minimum Income Requirement is aimed to ensure families meet their children’s needs without relying on public funds, then British workers should equally earn that much to meet their children’s needs. Many families in the UK live off of a far lower amount, so the actual figure set is somewhat arbitrary and inflated. There is a current cost of living crisis, with wages stagnant and inflation increasing rapidly. The requirement for a set income, and certainly the level of income set, is out of touch with the current reality for most normal, working people, including British people with family overseas.

 

  1. There is specified evidence and sources of income that are allowed to go towards meeting this requirement. Gathering and sending this evidence is a difficult and time consuming task. Having more flexibility as to how to show income, or offering more support / resources that break down the evidence required in plain English would reduce the stress and time taken simply gathering evidence.

 

  1. It would be more realistic and practical to look at the family unit’s income as a whole rather than this current focus on what the UK-based Sponsor is earning. It would allow the joining partner’s income to be taken into account as a norm, rather than as an exception, which is more akin to how families actually use their joint income. It could also be improved by allowing the realistic prospective earnings of a joining family member in the UK to be taken into account, especially where the joining family are skilled workers or professionals. The requirement could be improved by allowing savings to be taken into account without setting a rigid, arbitrary, and extremely high level of savings requirement. The savings required, if not earning the set income, is completely out of the realm of possibility for most normal working families and does not match with any assessment of how much money they would actually need to survive, particularly if they are not intending to settle permanently in the UK. Finally, to fit within the diversity of family makeups and the actual economic trends facing the younger generation, it would be improved by making it easier to rely on guaranteed 3rd party support from, for example, a parent, without having to face additional hurdles.

Section 4 - The effects of family migration

  1. The addition of more people to the UK population, and the particular characteristics and family makeup being added, of course have wide impacts for UK society and the public. The objective data seems to suggest that families that have migrated to the UK are, to a small extent, economically disadvantaged compared to their British counterparts. Where such families are eligible to claim public funds, there is a slightly higher level of reliance on public funds. However, it is also important to note that not all families will be eligible for public funds.

 

  1. Of course, family migration increases the population, so arguably puts an increased strain on public services and infrastructure, especially regarding children and Adult Dependent Relatives. There is specific concern for the number of Adult Dependent Relatives coming to the UK, because they tend to have a higher cost and public funds reliance associated with them. However, as we have already seen, forcing a policy that is so strict that it is almost a blanket ban to prevent Adult Dependent Relatives coming to the UK equally deters their working family members. It also does not take into account the fact that many people in the UK would, if possible, choose to bring their family here so that they personally can care and support them better, not to rely on the UK to do so. Often, when forced to choose between their family and elders (especially their parents, who many adult children feel at least somewhat responsible towards) and working for another country’s benefit as, for example, a doctor, people choose their family. By disallowing their reunification, we effectively force such individuals out and voluntarily give up all of their vital skills, the training that we may have contributed to, and any other fiscal impacts in order to prevent some potential extra cost that may or may not practically apply.

 

  1. Additionally, the immigration process is hostile, difficult, lengthy, and stressful. Often, the forms and evidence required are counterintuitive and time consuming. Even in the best circumstances, UK family members struggle to navigate the applications they need to do and how to do them. This is exacerbated where families are in difficult or dangerous situations. Many UK Sponsors we have assisted have explained that this impacts them a great deal emotionally and, in turn, impacts how well they can do the range of things they have to do for their family, including their work. There is a potential loss of productivity in the pursuit of “firm immigration law.”

 

  1. Other arguments have suggested that increased family migration increases the competition on the labour market. However, for work-related immigration routes, an employer generally has to show there is no British worker available to do the work, so an immigrant worker stands little chance at being hired over a British worker going for the same role. There is also ample evidence to suggest many, if not most, employers would choose a White British applicant over a migrant worker, especially if that migrant worker is Black or of an ethnic minority. As well as this, there are gaps in UK education and training, where we simply do not have enough workers, which must be filled in one way or another. When families migrate, particularly when they reunite, they are doing so because of the strength of their relationships and dependency, not to chase hypothetical jobs and benefits in the UK. Once in the UK, family members may not work in the paid sector and instead contribute to the household and their community.

 

  1. There is the benefit of additional workers, wages, and taxes coming into the UK. There are also aspects that aren’t as easily quantified, such as the contributions in terms of caring, child rearing, domestic labour, voluntary work (including within school settings), and so on.

 

  1. The other, less focused on side of the effects is those on the family, whether that be the family outside of the UK waiting to join their loved one here, or the UK based Sponsor trying to ensure all the requirements are met and the evidence is all ready, while dealing with forced separation from their family. With no exceptions, every family we have supported has, at one point or another, stated that being forced to remain separate from their families, especially after going through difficult or traumatic circumstances themselves, are a source of distress. Most have been impacted mentally to some extent. Some have developed physical or mental health issues due to their situation. Where the Sponsor is a refugee or resettled on a protection route, their family will normally still be in the persecuting state, and Sponsor spend the vast majority of their time worrying about the safety of their loved ones.

 

  1. For the family waiting abroad, being barred from reuniting with their loved one can be utterly devastating and could even be the difference between life and death. We are seeing this increasingly with the Afghan crisis, where Sponsors desperately seek to bring their family to the UK and escape the persecution of the Taliban. Many are being refused, often on justifications such as the ‘wrong form being used’ (when there is no form that actually meets their circumstances due to the nature of the crisis) or because of onerous evidential requirements that would not be possible to meet in the best of circumstances (such as requesting a tenancy agreement with both of the couple’s name on in a country where men are typically presumed to be head of household.) Even in a relatively ‘normal’ situation, being separated from your family when you did not fully choose to do so is distressing. It impacts the family in every conceivable way, from how they feel, to how well they do at work / school, to their income, and so on.

 

  1. This is exacerbated when immigration law results in extended or indefinite family separation. This may occur because the family cannot show they meet the requirements within the Rules (or because they are trying to bring an extended family member.) It may occur because the family, trying to reunite in the ‘proper’ way, make applications outside of the Rules since their situation is not accounted for and then the Home Office refuse to use their discretion, and bar them from being together. A particularly appalling example is that of Afghan nationals in the UK. Although the schemes did allow some family members to come to the UK with their Sponsor, there were set numbers decided by the UK Government (based on their view of how many people we can support as opposed to the actual protection need.) Some Afghan nationals now have family in Afghanistan that are stuck under Taliban rule because they couldn’t join on the scheme. Similarly, some Afghan nationals who claimed asylum in the ‘traditional’ way (which would now put them under Group 2 and subject to various even more hostile provisions under the NBA) find themselves unable to reunite with their family, despite having the legal right to do so as refugees, because their family are unable to attend a Visa Application Centre anymore - especially for minor and female family members, who are deemed to need a mahram to leave the outside - and the Home Office refuse to exercise their discretion with regards to biometrics.

 

  1. The extreme delays in current visa processing also prolong this separation. Within our family reunion work, we used to advise clients that, per the Government guidelines, we anticipate a decision within 3 months of attendance at the Visa Application Centre. At present, we have been working on our project for a little over 1.5 years and we have only had a handful of decisions. We have decisions that were submitted November and December 2021 which are still ‘pending’, so the families are left in limbo. This has caused safeguarding concerns for many families involved. There are multiple families trying to reunite with an unaccompanied or at risk minor (including those at risk of forced conscription, forced marriage, sexual and gender based violence, Female Genital Mutilation and kidnap by the Taliban) or vulnerable person who cannot claim asylum themselves without putting themselves at risk and now, due to the NBA, becoming criminals subject to Group 2 treatment. While waiting for the decision, Sponsors have been forced to watch the situation of their families deteriorate and even suffer the loss of further family members while waiting. We have had multiple families have a member go missing, and be unable to contact them again, while waiting on decisions for months.

 

  1. At present, these families face the additional stress and hurdle of constantly chasing up these applications for updates, which come very few and far between otherwise. Some have had to gather further evidence of risks they have already explained in their original application to try and get a faster decision. Some have had to take it further and complain to their MPs. They are desperate for an answer and, as practitioners, it becomes harder and harder to manage their expectations and mental health because we have no more information than they do. We are told that there are delays due to the war in Ukraine, and told to wait. Our clients ask for updates and we can only repeat the same generic information. It is an ongoing cycle which appears to be worsening the longer they wait. As it stands, I will depart from this particular project in December and will likely not hear of the outcome of the majority of the work I have done, or be able to support these families in their next step, because of delays. This then has a knock-on effect for families, who may have to find alternative representation should the application be refused, and for the caseload of the current representatives dealing with such appeals in an already stretched sector.

 

  1. Further delays are also caused by the fact that the Home Office often asks for further information before they make a final decision. In and of itself, this is not a bad thing; it allows for clarity and a chance to respond to any concerns before a refusal. However, we are noticing that the requests often ask for information that has already been submitted - such as evidence showing how someone meets a certain requirement, which is explained at length in the representations we write and which we have already gathered as much documentary evidence as possible for. Often, they ask for a piece of evidence we have already sent, but which was clearly not forwarded to the appropriate caseworker. Some evidence requests have also asked for information or evidence that does not actually relate to the substantive requirements under the Rules but focuses on a highly specific point. For example, we recently had one which asked for us to explain why a teenaged Applicant living overseas from their parent for an extended period of time had a different account to how their parent found out one specific fact of their circumstances. The relevance of this to demonstrating that this parent had a relationship with their child and that it was ongoing was tenuous at best. Due to the fact that it was so highly specific and centred around verbal conversations between Applicant and Sponsor, there was no evidence we could send other than a statement, which meant both the Applicant and Sponsor had to recount all of this anew in order to meet the request. A final note on these requests is that a short time frame is often set to provide a response by. Usually, we are given 5 days, sometimes 10. While this is ample time to re-send the Home Office some evidence they already had, it is not enough time to actually gather any fresh evidence or additional information if the Home Office has raised something new. It is difficult to manage as practitioners in a smaller organisation, where part-time working is the norm, let alone as a Sponsor acting independently.

 

  1. Further stress and upset is caused by immigration law because of the uncertainty of waiting. While a separation for example for work purposes would have a set time limit and therefore be easier to navigate, families waiting on decisions have no idea whatsoever when they will hear about their case and, when they do hear, if it will even be successful. Families often wait months, or even years, for decisions just to be refused (sometimes wrongfully, as is seen regularly in appeals particularly on Leave Outside of the Rules) and face that emotional turmoil.

 

  1. Visa fees also cause stress and prolonged separation for families. UK visa fees are some of the highest in the world and many families struggle to afford them. While there is sometimes the option to apply for a fee waiver, these are difficult to get and very time consuming to prepare applications for, especially due to the level of financial information and evidence required. Families who are not eligible or struggle to demonstrate their eligibility for a fee waiver often face the decision of deciding to pay the fees, which may or may not result in a positive decision, or continue to meet the family’s needs. Often, they must analyse what, if anything, they can afford to cut back on to save up for the application fee. For many, they are already cutting back on everything possible due to the cost of living crisis, and therefore simply cannot afford to apply. This is especially the case for settlement fees and child registration fees. Consequently, entire families remain stuck on limited leave to remain, having to apply over and over, and remaining in legal limbo, because of their finances, which are usually out of their control.

 

  1. All of this has a particularly strong impact on children. While separated from their family, children seem to adapt quickly to using modern means of communication, and the vast majority of the families we support do so. Although, it must be noted, some of the most at risk and disadvantaged families we have helped cannot even speak to each other on the phone. The use of such methods seem to be a double edged sword. On the one hand, it allows families to continue and build their relationship, especially with regards to parents. We have supported multiple families where a child has recognised and ran to an overseas parent during a visit because of the amount of time they have spent communicating over the phone or through Skype, for example. However, it can also cause upset for the children. Being able to see, speak to, and communicate with their loved one but not being able to understand why they can’t just be together is particularly distressing. Many children become overwhelmed by the conflicting emotions of wanting to be with their loved one, even if it is through a computer or mobile phone screen, and the devastation of knowing they are so far away while doing so. Children are particularly ill-equipped to deal with the waiting aspect, especially when there are such severe delays. Prolonged separation means they must live their lives missing their family member, often a parent, with no idea when or if they will be together again, missing that bonding and role model.

 

  1. The best interests of children are, in theory, a primary consideration in immigration decisions. However, the actual outcome of decisions doesn’t suggest that the child concerned has been considered at all, much less as a primary concern. Often, there is no information within the decision that explains how the child’s best interests have been considered and why, as is more and more commonly the case, it appears some overarching public good requires the child’s interests to be deprioritised. This is similarly the case with regards to the legislation, which states it will consider children’s best interests, but provides no information or analysis as to how the provisions therein have been formulated to balance this. It is even harder to see how any of the provisions in the NBA have considered the welfare of children at all.

 

  1. As well as this, much of the security screening and procedures applies just as much to children as adults, which is not appropriate. Even just filling out the form requires Applicants to answer extremely loaded questions, which can be taken as culturally insensitive. For example, Refugee Family Reunion routes require all Applicants to openly confirm they are not a terrorist. For advisors, this means asking the Applicants about this. While occasionally uncomfortable, this at least can be justified on the basis of security for adult Applicants. However, Applicants clearly struggle to understand why their child has to undergo almost the same level of screening.

 

  1. This failure to consider their best interests, coupled with the high rate of refusals for any applications outside of the Rules or for extended family members, puts children at risk. It keeps children in the UK in emotional turmoil. It often results in the permanent separation of families, including children from parents, and potentially from the only family they have remaining alive. This is especially the case for Unaccompanied Asylum Seeking Children, who won’t have a parent present who can apply under Refugee Family Reunion to bring, for example, a sibling to join them.

 

 

Section 5 - How immigration law could be adapted

  1. Family migration and the law surrounding it would be improved by a more common sense approach to deciding cases, especially when it comes to requesting further evidence. Many families, but especially refugee families, would benefit from increased flexibility which actually recognises the diversity of family life and different cultures. For example, an emphasis on cohabitation amongst unmarried partners, where in many cultures it is not possible or practical to live alone with your partner before marriage, does nothing to benefit the UK or the families trying to reunite here.

 

  1. A key area for improvement would be ensuring decisions are made efficiently and quicker than they are now. If there is a set time frame for decision making, the time frame should be given more importance and more effort should be put into actually meeting it. There should be clear consequences for a failure to do this without good justification. Where applications are delayed, the onus should not be the Sponsor to find out why this is or what is happening. Particularly where families are waiting over 6 months, the Home Office should provide regular and specific updates about their case. If this is not possible, then they should at least ensure their staff all have access to the same information. When we call for updates, we have on more than one occasion been told different updates about the same case because a different member of staff dealt with our request. This makes it impossible to accurately inform our clients or manage their stress and expectations because we are simply not given accurate information with which to do so.

 

  1. At present, there is a discretion to allow decisions in principle, which allow the substantive elements of an application to be decided before the Applicant has to make the journey to enrol their biometrics. This, in my view, is a common sense approach. There is little reason to force people to make dangerous (and potentially illegal journeys, with regards to border crossings due to a lack of Visa Application Centre) at their own cost, to be fingerprinted and have their photograph taken, before even finding out if the application is approved. The Home Office could direct to enrol them prior to their travel, with any issues being flagged and resolved at biometric enrolment, or once they are in the UK and subject to our immigration and domestic law anyway. This is the stance they have taken with regards to many Ukrainian nationals, which is welcomed in a crisis, but not for anyone else.

 

  1. Since the dissolution of the Refugee Family Reunion team in Sheffield, there has been a loss of evidence, poor communication, and no clear replacement for their safeguarding teams. Firstly, if an entity that large, in control of that many cases, is disbanded, appropriate and robust procedures must be in place to transfer responsibility to the new team, which clearly has not happened. Secondly, it is essential to have a specified team to deal with security and safeguarding concerns in any application, but in particular for family migration due to the higher likelihood of children being involved.

 

  1. The process would be made much less stressful and more efficient if there was a better way of requesting updates and expedition, so the burden does not fall on an individual Home Office staff member at random based on who happens to get the request, and so immigration caseworkers can actually support and update their clients.

 

  1. Recognising the depth and diversity of familial relationships beyond the notion of a nuclear family would benefit immigration law; it would improve results for families and be more reflective of current and realistic definitions of family.

 

  1. There is a discretion in all decision making, including in biometrics, although it is little used. Recently, the Refugee Family Reunion guidance had to be updated due to it being judicially held to be unlawful - all because it failed to acknowledge and facilitate the use of this discretion. While we welcome clarity in the guidance, the practical outcomes have remained much the same. There needs to be more clear support for Home Office staff on this discretion so that it is actually used and the families who need it most are benefitted, and so more applications Outside of the Rules are allowed at first instance rather than being appealed and ultimately successful, wasting time, money, and court assets.

 

  1. Generally, the law and procedures would be improved by more detailed and regular training for staff, regular reviews of decision making on an individual and department level, and by adopting a proactive approach to deciding cases. It would also be improved if reflective feedback became the norm in decision making as it is in casework, where issues that are continuously identified are addressed through training and hopefully avoided for the future.

 

  1. We are extremely grateful for the opportunity to contribute to the growing conversation regarding family migration in the UK. Thank you for your time in assessing all responses to this call for evidence.

 

 

15 September 2022