Coram Children’s Legal Centre – Written evidence (FAM0078)
Coram Children’s Legal Centre
Coram Children’s Legal Centre, part of the Coram group of charities, promotes and protects the rights of children in the UK and internationally in line with the UN Convention on the Rights of the Child. We are submitting evidence based on our experience delivering immigration legal services to children, young people and families over many years, both legally aided and grant funded. We have long worked on migration policy as it affects children and young people, including co-chairing the Refugee and Migrant Children’s Consortium and currently sitting on the Home Office review committee for the process of redrafting the Immigration Rules. Rosalyn Akar Grams, our Managing Director, provided oral evidence to the inquiry on 12th July 2022 and we make this written submission in addition.
Summary
What has changed more than definitions is the substance of the Immigration Rules on family members seeking to join someone who is permanently resident in UK. Essentially, it is now much harder to bring a spouse, partner or family to join you in the UK. A five – or possibly ten – instead of a two-year wait for permanent status is a different proposition.
In refugee family reunion provisions there have long been glaring gaps, notably for refugees sponsoring post-flight spouses, for de facto adopted children, and for refugee children sponsoring any family to join them; this leads to applications ‘outside the Rules’. This suggests the Rules are not fit for purpose, over-prioritising as they do the nuclear family unit and not recognising, for example, sibling relationships or the de facto relationships that form in the context of refugee children’s turbulent lives. Moreover, with the Nationality and Borders Act 2022, there will now be a sub-section of refugees who will be denied family reunion.
Overall, the inadequacy of the defined routes within the Immigration Rules and their failure to account for the reality of contemporary family relationships are reflected in the number of people being dealt with ‘outside the Rules’.
The main determinant of how families are treated by the UK immigration system is wealth.
Differential treatment of refugee families is set to become far more entrenched with the effects of the Nationality and Borders Act 2022.
An unintended (but foreseeable) consequence of the minimum income requirement is the separation of babies and children from their parents. In the formulation of the policy and in individual cases we have seen since its introduction in 2012, there has been inadequate consideration of children’s best interests and the proportionality of cutting children off from a parent.
In relation to the labour market, a mother of two children has had limited leave to remain as a partner on the ten-year route to settlement. She cannot train as a nurse until she has completed ten years and also funded an expensive settlement application. The NHS has lost at least five years of her labour as a nurse because of the limitations the family migration system has placed on her.
Family migration policy extends the period where those who are not on a five-year route are likely to be dependent on public services.
Families becoming reunited and settled sooner would result in fewer families being dependent on local authorities over extended periods of time.
Family migration policies could be adapted to prevent family separation by:
- Better consideration of the best interests of children in the formulation and operation of family migration policies.
- Not imposing the minimum income requirement on families.
- Rethinking the application fees and immigration health surcharge system and speeding up the process of applying for a fee waiver.
- Ensuring more refugees are able to sponsor their family to come to the UK, including lone children being able to bring their parent or sibling or other family.
- Making the process of applying for family reunion easier by not requiring a biometric enrolment appointment at a visa application centre overseas.
The best interests of the child and the section 55 child welfare duty should be treated as a primary consideration in the formulation of family migration policies.
A key point is that it is wrong to portray family life and children’s best interests as private matters and immigration control as a ‘public interest’. It was established by Lady Hale in the Supreme Court case of HH that there is also a strong public interest in ensuring children are properly brought up.
Integration and participation are negatively impacted by very long routes to settlement.
Design of family migration law
The law on families and relatives was not consistent across non-EEA and EEA law. There were until 31 December 2020 parallel systems in the treatment of families and relatives. A huge evolution was the ending of EEA definitions of family and relative with the end of the transition period. This did not only affect EEA citizens; it also affected a large number of non-EEA family members who could previously rely on EU law rights.
Within non-EEA immigration law, the definitions have not changed so much, and though there have been important updates to reflect contemporary life including provisions for same-sex relationships, durable partners and civil partners, the evidential burden for proving such relationships can be higher than for example traditional marriages. It is worth noting the absence of a definition of ‘relative’ for some family routes, which can lead to uncertainty, and the anomaly that some of the general definitions at paragraph 6 of the Immigration Rules relate only to the Ukraine scheme (‘aunt’, ‘cousin’ etc).
What has changed more than the definitions, however, is the substance of the Immigration Rules on family members seeking to join someone who is permanently resident in UK. Essentially, it is now much harder to bring a spouse, partner or family to join you in the UK.
The main ‘evolution’ in family migration happened with the July 2012 introduction of Appendix FM to the Immigration Rules, doing away with much of Part 8 (‘Family Members’) of the Rules, but leaving some provisions relating to children and minor relatives.
Prior to July 2012, the partner/spouse route was a two-year route to settlement, with dependent children sharing that timeframe. It is now a five- or ten-year route to settlement, with a minimum income requirement. Dependent children have shared this long wait for settlement with their parent.
The strategies for families have had to change because of the minimum five-year wait for settlement under Appendix FM. Before July 2012, it used to be relatively common for children, and particularly step-children, not travelling with their parent entering UK to be left with a relative for a couple of years until they could join both settled parents (gaining settlement upon entry to the UK via Rule 297). A five – or possibly ten – instead of a two-year wait is a different proposition, and changes decision-making on whether it is feasible to keep the extended family together.
Part 7 (Other Categories), which deals with Long Residence and Private Life categories – often used in family cases in a supplementary capacity – was also substantially altered in July 2012.
Appendix FM and the Private Life rules were an attempt to codify grants of leave under Article 8 ECHR (predominantly ‘family life’ cases) – and, notionally, to make outcomes for the Home Office and for applicants more predictable and consistent. However, possibly unintended consequences developed – see response to the questions below.
The refugee family reunion provisions have remained substantially the same in recent years, but the changes to the way that family members are treated by the Immigration Rules has contributed to a huge increase in applications for Family Reunion ‘outside the Rules’. Part 11 of the Immigration Rules allows for family reunion for ‘qualifying family members’ (spouses or partners and children under the age of 18, who formed part of the family unit before their sponsor fled their country) joining their relatives in the UK with refugee status, but there have long been glaring gaps, notably for refugees sponsoring post-flight spouses, for de facto adopted children, and for refugee children sponsoring any family to join them. Again, this leads to applications ‘outside the Rules’. Paragraph 319X is an example of the Immigration Rules providing for relationships between relatives – with ‘child of a relative’ including nieces, nephews, step brothers, step sisters and cousins – but step-children are not included and the rule is hard to satisfy.
In a family reunion project run by Coram Children’s Legal Centre, the majority of family reunion applications are made ‘outside the Rules’. This suggests the Rules are not fit for purpose, over-prioritising as they do the nuclear family unit and not recognising, for example, sibling relationships or the de facto relationships that form in the context of refugee children’s turbulent lives.
Moreover, with the Nationality and Borders Act 2022, there will now be a sub-section of refugees, as well as all those people granted humanitarian protection, who will be denied family reunion.
Overall, the inadequacy of the defined routes within the Immigration Rules and their failure to account for the reality of contemporary family relationships are reflected in the number of people being dealt with ‘outside the Rules’. Attempts to hem in Article 8 ECHR family life rights do not match the reality of contemporary family life.
The main determinant of how families are treated by the UK immigration system is wealth. If a family is able to afford to move around the globe to make entry clearance rather than in-country applications, finance waiting for visas and demonstrate capacity to be entirely self-sufficient, then their path to immigration security is much shorter, more cost effective, and puts less strain on family life.
The justification used for the discrepancy in treatment is that less financially secure families are more likely to become an unreasonable burden on the state. This is a prospective test. Adults in these poorer families are typically put on, or default to, a ten-year route to settlement and so wait longer and have additional cost burdens, with restrictive conditions (‘no recourse to public funds’ – NRPF) placed on the leave to remain, before their worthiness for settlement is accepted by the Home Office. Granting ‘early’ settlement to the children of such families has been a welcome recent development, but does not address the organic nature of families and family life – if a parent is poor, then a child is poor. Benefits and welfare for children are administered through parents, and so any detrimental discrepancy of provision that impacts parents will also impact children. The residual duty falls to the local authority:
Provision of services for children and their families
17 Provision of services for children in need, their families and others.
(1) It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part)—
(a) to safeguard and promote the welfare of children within their area who are in need; and
(b) so far as is consistent with that duty, to promote the upbringing of such children by their families,
by providing a range and level of services appropriate to those children’s needs.
Children Act 1989
For refugee families, there is different treatment for resettled refugees, other refugees and refugees who come under the bespoke schemes. The bespoke Afghan and Ukrainian schemes differ from one another and from the standard refugee route. The Afghan scheme offers immediate settlement to refugees and recourse to public funds, but insufficient housing has been found for them and the scheme was open to only a very limited number of people. The Ukrainian scheme allows online applications without prior enrolment of biometrics and is more open – to those who have a family member with certain types of status in the UK or who can find a sponsor – and gives access to public funds, but places families in spare rooms and limits them to three years with no route to settlement.
In terms of refugee reunion, there are discrepancies in treatment between families and across time. For example, a family member joining someone in the UK who is British would face a completely different application process and waiting time than if that person was a refugee. As another example, post-Brexit applicants who have similar circumstances and may even come from the same family have found themselves facing more restrictive immigration rules based upon when they make their immigration application. Applicants who were able to apply prior to the Dublin Regulations coming to an end in December 2020 might have exactly the same circumstances as those applying after December 2020, but the former will have a significantly easier time of applying.
Differential treatment of refugee families is set to become far more entrenched with the effects of the Nationality and Borders Act 2022. The concept of differentiation between so-called group 1 and group 2 refugees will mean that some refugees will get family reunion rights, access to public funds and a short route to settlement, while others will get only temporary leave and limited family reunion rights.
The Family Migration Statement of Intent (https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/257359/soi-fam-mig.pdf) states that the objective of the minimum income requirement (MIR) is to ‘safeguard the economic wellbeing of the UK’. The MIR has not achieved this objective. Families who cannot meet, or cannot sustain, the MIR instead become mired in a greater number of applications, fee exemption attempts, and requests to have the NRPF condition lifted, which puts a resource burden on the advice sector and an emotional and practical burden on families, as well as an administrative burden on the Home Office. These families are typically working in low-paid NHS, retail, manual and care positions which require access to in-work benefits (which are ‘public funds’) for the maintenance of reasonable family finances. For the ten- years that Appendix FM has been in operation, the UK has been a low-wage economy in which reliance on public funds is embedded in the economic system.
The purpose of public funds is to distribute support to those who are in need – predominantly those with children, and disabled people. Restricting access to help to people in need has to be counter-productive to social cohesion and the sense of the wellbeing of UK society. It can rarely, if ever, be in the best interest of children to deny their parents public funds to which they would be entitled but for the NRPF condition.
An unintended (but foreseeable) consequence of the MIR is the separation of babies and children from their parents. In the formulation of the policy and in individual cases we have seen since its introduction in 2012, there has been inadequate consideration of children’s best interests and the proportionality of cutting children off from a parent.
How family migration policies affect society
An example: a mother of two children (the older child autistic) has had limited leave to remain as a partner – her husband is now a disabled pensioner – for 7.5 years. Her initial grant was made in-country so she was put on the ten-year route to settlement, rather than a five-year route. She has worked as a low-paid carer in a residential care home for adults with severe learning difficulties since she was granted leave and has self-funded a nursing access qualification, paying for each of the three visa application renewals including the immigration health surcharge. She got a university place to train as a nurse but because she is not settled, she is treated as an overseas student, not entitled to home fees and with no access to student finance. She cannot train until she has completed ten years and also funded an expensive settlement application. The NHS has lost at least five years of her labour as a nurse because of the limitations the family migration system has placed on her.
A further example: a mother and two children are in the UK with the father abroad. They are separated by the minimum income threshold. The mother is unable to afford childcare costs and is struggling with the burden of effectively being a single parent. She is unable to work. Were the family unit allowed to live together in the UK, they could work.
A long wait for stability and settlement is detrimental to mental health. Family separation has a psychological impact on children. Families who are destitute and struggling are far more likely to have health crises than those who are living a more settled life. Long periods in inadequate and overcrowded housing increases the incidence of conditions such as childhood asthma, and can pose a safeguarding risk. Children who are not well fed and have no space to study will struggle more in school. Family migration policy extends the period where those who are not on a five-year route are likely to be dependent on public services. Denial of support entrenches disadvantage and can make providing help much more expensive and complex down the line.
The NRPF condition placed on limited leave to remain under Appendix FM and some other categories means that the only safety net for families with children is section 17 of the Children Act 1989. This is support for children in need funded by the local authority. Families becoming reunited and settled sooner would result in fewer families being dependent on local authorities over extended periods of time.
Immigration insecurity exacerbates family breakdown and children sometimes have to go into care, with older children supported under section 20 of the Children Act 1989 (also LA funded).
How migration policies affect families
There are a number of circumstances in which family immigration law and practice result in family separation, including for example:
- Families separated by the minimum income requirement for spouses.
- Refugees unable to reunite with families under the refugee family reunion rules. Even those who can apply face a very long wait while their applications are processed.
- People on visas (like Ukrainians in the UK on short-term visas or Ukraine extension scheme visas) unable to sponsor their families to join them in the UK.
- Children unable to join a parent in the UK due to the restrictiveness of paragraph 297.
- People with a route to apply under who cannot afford the fee or, where a fee waiver is available, have to wait while their fee waiver application is processed.
- Children, young people and partners on the ten-year route to settlement who cannot leave the UK to live with family abroad because they would fall off their route to settlement in the country they grew up in and call home.
What differentiates these scenarios from other non-immigration-related situations of family separation is that:
- Separation is not through choice but enforced; these are families who want to live together.
- The families often cannot see each other at all and sometimes communication is difficult. For example, an Afghan child refugee in the UK may have few means of communicating with his younger sibling who is still in Afghanistan.
Immigration law is complex and family separation can also arise in circumstances where the family cannot afford and/or cannot access good advice on their legal options so that they have help to understand how their case needs to be presented and defended. Many families feel or believe that the Home Office does not care, and takes no account, of their distress or their circumstances. Legal aid is out of scope for immigration. There is no longer enough capacity in the legal aid sector and many areas of UK are immigration advice deserts.
Family migration policies could be adapted to prevent family separation by:
- Better consideration of the best interests of children in the formulation and operation of family migration policies.
- Not imposing the minimum income requirement on families.
- Rethinking the application fees and immigration health surcharge system and speeding up the process of applying for a fee waiver.
- Ensuring more refugees are able to sponsor their family to come to the UK, including lone children being able to bring their parent or sibling or other family.
- Making the process of applying for family reunion easier by not requiring a biometric enrolment appointment at a visa application centre overseas, a requirement the Home Office successfully has done without for Ukrainians. Travel to these appointments can be difficult, dangerous or impossible. Whilst there is presently provision within Home Office Family Reunion Guidance for applicants to be excused from enrolment in ‘exceptional individual circumstances’,[1] much could be achieved for families through a more permissive approach that forgoes the need for the VAC appointment – allowing applicants with a route by which to make an application. Lessons can be learnt from the Ukraine scheme, which shows that it is possible to apply online and then enrol biometrics after arrival in the UK. As an alternative, at the very least there could be an accessible and clear process for submitting an application and receiving a decision in principle on the application before having to enrol biometrics.
Family migration policies too often leave children separated from one or both of their parents, or other loved ones. For example, a child lives with her disabled mother who does not earn enough to meet the minimum income requirement and so the child is growing up without their doting father. For example, a young girl recognised as a trafficking victim and refugee is advised there is no route for her mother to come and join her in the UK. For example, a child refugee desperately longs to be joined by his older brother, his former caregiver and only living relative.
Families use the same means as everyone – WhatsApp, zoom, but it’s not the same as living together.
Refugee families may face particular challenges in communicating with family members either in their country of origin, for example due to safety concerns, or in precarious situations outside their country of origin, for example in refugee camps without mobile phones or access to the internet.
The best interests of the child and the section 55 child welfare duty should be treated as a primary consideration in the formulation of family migration policies. In our experience over many years, the immigration system fails to do this. We would like to see clear child rights impact assessments, which we have not seen, for example in relation to the 2014 Act, the 2016 Act, the 2020 Act or the 2022 Act.
It was in the context of unaccompanied children seeking asylum, but the Independent Chief Inspector’s report on the consideration of children’s best interests in 2017 stated: ‘Inspectors found that Home Office staff were not giving full consideration to the child’s ‘best interests’ in refusal decision letters.’ We believe this lack of full consideration is widespread across immigration routes and would be keen for the independent chief inspector to look at best interests consideration in other areas too.
In practice, we see that the best interests of the child are often only considered in a cursory way at the point of decision and no clear articulation of that consideration is given, just one sentence in a letter mentioning section 55. The courts have given clear guidance on what treating children’s best interests as a primary consideration should mean, and principles include the following:
- Lady Hale and Lord Kerr in ZH (Tanzania) held that the best interests of a child should be looked at first before considering whether there was a reason to displace what was in the child’s best interests;
- An important part of discovering the best interests of the child is to discover the child’s own views;
- While a child’s interests may be the same as their parents', this should not be taken for granted in every case;
- A child must not be blamed for matters for which he or she is not responsible, such as the conduct of a parent;
- Although the best interests of a child can be outweighed by the cumulative effect of other considerations, no other consideration can be treated as inherently more significant;
- It is important to have a clear idea of a child's circumstances and of what is in a child's best interests before one asks oneself whether those interests are outweighed by the force of other considerations.
A key point is that it is wrong to portray family life and children’s best interests as private matters and immigration control as a ‘public interest’. It was established by Lady Hale in the Supreme Court case of HH that there is also a strong public interest in ensuring children are properly brought up.
In family law, under the Children Act 1989 the bests interest of a child shall be the paramount consideration which contrasts significantly with immigration law where it shall be a primary consideration. In terms of learning from the family justice system, it would be helpful if judges in the Immigration chamber had experience of family law. Family law principles and understandings are largely absent in the immigration jurisdiction. The Supreme Court case of ZH (Tanzania), which was notable for its treatment of children’s best interests, came out of mixed-experience judicial consideration. Currently, the voice of the child is rarely adequately heard in immigration proceedings despite the UK having signed up to the UN Convention on the Rights of the Child over 30 years ago and despite important progress made in the family justice system to get better at hearing the child’s voice. Immigration officers and Home Office decision-makers need much better training in best interests principles, and what it really involves to safeguard the welfare of a child. The duties under section 55 of the Nationality, Immigration and Asylum Act 2002 need to be made real. The law is there – it is the practice (and the culture of child rights respecting mindsets in the Home Office) that are missing. This is particularly highlighted in situations where families are involved in both the family justice system and the immigration system, where careful consideration and clear findings on best interests made by the family courts can have significant persuasive impact on the outcome of immigration cases. However, there is often not a clear pathway for involvement or intervention from the family courts, nor would it be appropriate in all cases.
It is generally divisive – the message of the law is perceived as ‘you’re not really welcome here’. The effect of the law is punitive.
Integration and participation are negatively impacted by very long routes to settlement under Appendix FM. Families want to build lives and contribute but the ten-year route acts against their integration because it keeps them in a precarious state where they could fall out of status and where they have to continually save in order to pay immigration fees, rather than being able to, for example, save for their children’s studies.
Restrictive refugee family reunion policies also hinder integration. Refugees would like to try to recover and build new lives but they often need their family to do this and all too often they cannot bring their family to join them or if they can the process is extremely difficult and slow.
Family units often allow parents/carers to share family care and therefore be able to work. Family separation prevents people working, making them less able to participate.
September 2022
[1] Family reunion: for refugees and those with humanitarian protection Version 7.0 29 July 2022 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1094740/Family_Reunion_Guidance.pdf p.13.