Safe Passage International – Written evidence (FAM0082) 

About Us

At Safe Passage International, we help refugees access safe routes to asylum. We champion refugees’ right to safe passage through strategic legal work, advocacy, capacity building and community organising.

As the leading family reunion charity assisting unaccompanied child refugees in Europe, our legal teams in the UK, Greece and France provide legal advice and support to refugee children across Europe and beyond who are looking to reach relatives in the UK. We support children to access family reunion through the EU’s Dublin III Regulation and under the UK’s Immigration Rules.

In partnership with Refugee Legal Support and 14 commercial law firms, we also have a dedicated programme of work, the Afghan Pro Bono Initiative, offering pro bono legal advice and representation to Afghan refugees.

Summary

The UK’s family migration policies are failing unaccompanied child refugees, who are separated from their parents or family. Leaving children stranded alone without a safe route to family in the UK is a critical failure in refugee and child protection. The unaccompanied child refugees we work with are living in incredibly vulnerable situations. In overcrowded refugee camps, in inadequate shelters or on the streets, these children at risk of violence, labour or sexual exploitation and trafficking.

At Safe Passage, most of the child refugees we help are seeking to reunite with family members in the UK such as siblings, aunts or uncles – rather than parents. Despite this, the Refugee Family Reunion Rules (Part 11 of the Immigration Rules) are designed to help unaccompanied children reunite only with their parents – not other family members.

Under the EU’s Dublin III Regulation, child refugees in the EU are able to reunite with parents, siblings, aunts, uncles, and grandparents – plus other family members in exceptional circumstances. Britain accepted this definition of ‘family’ whilst a member of the EU, which allowed many more families to reunite. However, since the UK left the EU, children must rely on the UK’s Immigration Rules. Now children are faced with significant barriers to reunification from prohibitively strict criteria, arduous financial tests and high application fees. At best, children are left waiting months alone and separated from family – at worst, they are prevented from safely joining loved ones at all.

When children have no safe route to reach family, they are likely to risk their lives on dangerous journeys to reach loved ones. None of our cases under the EU’s Dublin III risked a dangerous journey in 2020. In 2021, more than a half of the unaccompanied children we worked with lost faith in the legal process and travelled to the UK irregularly, instead of pursuing an application under UK’s Immigration Rules.

The situation in Ukraine shows how the definition of ‘family’ under the Refugee Family Reunion Rules does not reflect the societal understanding of family or the reality of refugee experiences. The need for a new ‘bespoke’ scheme, the Ukraine Family Scheme, demonstrates the inadequacies of the family reunion under the Immigration Rules – the scheme broadened the definition of ‘family members’, removed the maintenance and accommodation requirements, waived all application fees and allowed for flexibility with attending a visa application centre. This expansion of family reunion should be made available to all refugee families.

Recommendations

We recommend that the Government

  1. Ensures children seeking asylum have a safe route to family and sanctuary here in the UK by reforming the Immigration Rules so that the Rules make provision for people who are seeking asylum in order that they can join a family member in the UK. The family member in the UK must be ordinarily and lawfully resident here, and the definition of “family member” should mean:

(a) when the person is an unaccompanied minor:

(i) a parent, including adoptive parent;

(ii) aunt or uncle;

(iii) grandparent; or

(iv) sibling, including adoptive siblings;

(b) spouse, civil partner, unmarried partner of the person; and

(c) such other persons as the Secretary of State may determine, having regard to

(i) the importance of maintaining family unity;

(ii) any dependency between the family members;

(iii) the best interests of a child; and

(iv) any compelling circumstances.

  1. Allows refugee children in the UK to sponsor their adult relatives.
  2. Reforms the family reunion application process so that it is efficient, safe and accessible.
  3. Ensure that all refugees, no matter their nationality or how they travelled to the UK, have the same rights to protection and to family reunion.
  4. Coordinate with the EU on family reunification, to ensure that the responsibility for reuniting families sits with governments – not the child.
  5. Ensure that the best interests of the child principle and the right to respect for family life (Article 8) are a primary consideration and properly applied in family reunion cases and Home Office decision making.

Design of family migration law

1. 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. At Safe Passage, most of the child refugees we help are seeking to reunite with family members in the UK such as siblings, aunts or uncles – rather than parents. Since March 2021, 62% of our cases have been unaccompanied children trying to reunite with their siblings in the UK. For some, these are their closest surviving relatives. Whilst many children start their journey with their families, including parents and siblings, they can become separated, their family disappears or dies on the way.[i] Other child refugees lose their parents before they had to flee their country. In some cases, children are forced to flee alone. With the Ukraine crisis, we’ve seen children having to flee without their parents, who are staying to help with the war efforts or care for other relatives.
  2. Despite this, the Refugee Family Reunion Rules (Part 11 of the Immigration Rules) are designed to help unaccompanied children reunite only with their parents – not other family members. The Refugee Family Reunion Rules and the relevant policy are so limited and restricted in their definition of qualifying family that most unaccompanied children seeking to reunite with family are excluded. Moreover, the Refugee Family Reunion Rules only allow children to reunite with their parent if their parent has refugee status or humanitarian protection, and the child was born before the parents fled their country of origin. This very narrow definition of ‘family’ does not reflect children’s experiences of family, or the reality of refugees’ lives. It excludes most unaccompanied children and prevents them from safely reaching sanctuary and their loved ones.
  3. Under the EU’s Dublin III Regulation, child refugees in the EU are able to reunite with parents, siblings, aunts, uncles, and grandparents – plus other family members in exceptional circumstances. Britain accepted this definition of ‘family’ whilst a member of the EU, which allowed many more families to reunite. However, since the UK left the EU, children must rely on the UK’s Immigration Rules, which are far more restrictive and puts more onerous requirements on families trying to reunite. Now faced with such barriers to reuniting with family, many children lose faith in the legal process and instead risk dangerous journeys to reach their loved ones (see question 8).
  4. The situation in Ukraine shows how the definition of ‘family’ under the Refugee Family Reunion Rules does not reflect the societal understanding of family or the reality of refugee experiences. As a result, the Government set up a new bespoke scheme – the Ukraine Family Scheme – which allows Ukrainian refugees to apply to reunite with an expanded group of family members including siblings, grandparents, grandchildren, aunts and uncles, nephews, nieces and cousins. We welcome this expansion of family reunion under the Ukraine Family Scheme, which should be made available to all refugee families. The need for this new ‘bespoke’ scheme demonstrates the inadequacies of the refugee family reunion rules. Since the Taliban takeover of Afghanistan last year, for example, many families have not been able to reunite because the UK’s rules are so restrictive. An ITV investigation, in collaboration with Safe Passage, Afghanistan and Central Asian Association, Bridge2, St Vincent de Paul Society, and Paiwand, found that at least 1,800 Afghan families are still unable to bring close relatives to Britain.[ii]
  5. The situation with Afghan refugees also shows the limitations of how ‘family’ is understood under UK immigration law. Afghan families are often large and multi-generational. For many families, grandparents, mothers and fathers, children, aunts and uncles live together and consider themselves one household. They often have one source of income and share meals on one table. This understanding of Afghan family is not understood or supported under UK refugee family reunion, despite family connections putting people at risk. If one member of the household is at risk from the Taliban, for example because they worked as a contractor for the British Army, then the whole family is put at risk. Some family members are particularly vulnerable, for example unmarried women.
  6. In debates in Parliament, Ministers have often argued that children seeking to reunite with other family members, such as siblings, aunts, uncles or grandparents, can apply under other provisions under the Immigration Rules (specifically 319X and rule 297 in Part 8, and Appendix FM) or “outside of the rules”. However, our legal work has shown that these do not work on paper nor in practice.
  7. Under 319X, 297 and Appendix FM, children may apply to reunite with another family members, such as an aunt, uncle, grandparent or sibling (or their parent, where their parent has British citizenship or indefinite/limited leave to remain; or the child was born after the parent fled). Excluded by the tightly drawn Refugee Family Reunion Rules, most Safe Passage cases fall in theory under Part 8 of the Immigration Rules (319X and 297) due to the family member they are seeking to join, but in practice we have found that very few children are able to qualify under these rules. Under 319X and rule 297 in Part 8, and Appendix FM, there are prohibitively strict criteria, arduous financial tests and high application fees.
  8. Many families struggle to meet the financial requirements which act as a significant barrier to reunification. Under the Refugee Family Reunion rules (Part 11) there are no income or maintenance requirements for families to meet. However, under 319X and rule 297 in Part 8 requires families to show that their net income (after rent and council tax) is more than what an equivalent family would receive in benefits. Under Appendix FM, there is a minimum income requirement, which varies depending on the circumstances of the case and type of employment. They are also an additional burden for the sponsor who is trying to bring their family member to safety.
  9. Although the Government has recently introduced a way for sponsors to be exempt from the maintenance requirement when applying under rule 319X specifically, this process is still unclear and complex. To be exempt, the family must provide evidence of ‘exceptional circumstances’ and there is very little guidance on what factors will be considered and how these rules will be applied in practice. These changes do not resolve our concerns that maintenance and accommodation requirements prevent refugee families from reuniting.
  10. On top of this, families must often pay fees of up to £1523 just to make the application. These fees are often too high for refugee families to pay themselves and are a significant barrier to reunion. Although the Government has introduced guidance on processing applications for a fee waiver from overseas, the criteria are very narrow, this is a time-consuming process and requires additional evidence. This creates an unnecessary additional burden and creates further delays – leaving families waiting and unaccompanied children stranded alone.
  11. Under Dublin III, families could reunite for free, with no strict maintenance and accommodation requirements and with no requirement to show ‘serious and compelling’ circumstances. The primary focus was on the family link and the best interests of the child. See table below for comparison between UK Immigration Rules and the EU’s Dublin III.
  12. If child refugees cannot apply under the Refugee Family Reunion Rules, 319X, 297 or Appendix FM, then they must apply “outside the rules”. Applications which are made “outside the rules” rely on the Home Office’s discretion, which is infrequently exercised, and the few cases granted “outside of the rules” are mainly done so only on appeal.[iii] This means that children – some of whom would have had a clear route to safety and family reunion under the EU’s Dublin III Regulation - are now reliant on Government discretion as well as access to legal representation.
  13. To resolve the issues above and ensure children seeking asylum have a safe route to join family here in the UK, we recommend that the Government reforms the Immigration Rules so that the Rules make provision for people who are seeking asylum so they can join a family member in the UK. The family member in the UK must be ordinarily and lawfully resident here, and the definition of “family member” should mean:

(a) when the person is an unaccompanied minor:

(i) a parent, including adoptive parent;

(ii) aunt or uncle;

(iii) grandparent; or

(iv) sibling, including adoptive siblings;

(b) spouse, civil partner, unmarried partner of the person; and

(c) such other persons as the Secretary of State may determine, having regard to

(i) the importance of maintaining family unity;

(ii) any dependency between the family members;

(iii) the best interests of a child; and

(iv) any compelling circumstances.

  1. This new provision would open a much-needed safe route to the UK for children and separated families who need international protection and are desperate to be with their loved ones. Such a provision would also put right what was lost with Brexit by enabling child refugees to join family members including grandparents, aunts, uncles and siblings, as well as parents.

Table: key differences between EU’s Dublin III and UK Immigration Rules

Dublin III Regulation

UK Immigration Rules

Free for families reuniting – no fees

Families can face a fee of up to £1523[iv] for applying for family reunion, which can be unaffordable. Only applications under the extremely limited refugee family reunion rules under Part 11 are free.

No maintenance and accommodation requirements for families to meet, with the primary focus being on the family link and the best interests of the child.

Stringent maintenance/income and accommodation requirements in some cases, which can be difficult for families to meet. Only the extremely limited refugee family reunion rules (Part 11) do not require this.

Separated families had to show they had a family link and that it was in the best interest of the child to reunite. 

Families can be required to prove there are ‘serious and compelling circumstances’ in order to reunite.

Better protection for unaccompanied children seeking asylum as there was a clear, straightforward procedure, which was facilitated by cooperation between EU Member States.

Often fails to protect unaccompanied asylum-seeking children, as the burden falls on the child and family to make the application and provide the evidence. 

Being an unaccompanied child applicant is also not considered a ‘serious and compelling’ reason for family reunion by the Home Office.

The process for family reunion is the same for refugees who become British citizens as anyone who is “legally present” can sponsor family.

Different, harsher rules depending on the status of the family member in the UK, with it being more difficult for refugees to reunite if the family member in the UK has become a British citizen.

The process for family reunion is the same for siblings as other types of family member, e.g. parent/child.

Different, harsher rules depending on the type of family relationship, which means it is more difficult for refugee siblings to reunite.

Established timeline for decision-making with cases accepted by default if the UK didn’t respond within a 2-month period.

Uncertain and long waits for decisions - whilst the Home Office aims to make decisions in 12 weeks, no Safe Passage case has so far been processed within that timeframe.

More accessible application process, which can be done from the applicant’s location with no need to travel.

Need to travel to inaccessible Visa Application Centres to complete the application process.

International cooperation on family reunion

No international cooperation on family reunion – children and families seeking reunification must find out how to apply, secure appropriate advice, and go through the complicated and onerous application process.

 

2.               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. Immigration law does not apply to every family the same, and recent ‘bespoke’ schemes show how the Government applies immigration law differently to certain groups. The Ukraine Family Scheme removed significant barriers to family reunion for Ukrainian refugees by broadening the definition of ‘family members’, removing the maintenance and accommodation requirements, waiving all application fees and allowing for flexibility with attending a visa application centre to make the application.  The rules for Ukrainians have rightly been improved, however other families desperate to reunite and in need of safety are still forced to rely on the UK’s broken Immigration Rules.
  2. Even those who have come through other ‘bespoke’ schemes have been left without adequate access to family reunion. Afghan refugees who were evacuated and are now resettled in the UK under the Afghan Citizen Resettlement Scheme (ACRS) are still waiting to find out if and how they will be able to reunite with loved ones. Having Indefinite Leave to Remain, rather than refugee status, they do not have the right to bring their family members to the UK under the Refugee Family Reunion Rules. This is a significant failure in the Government’s response to Afghanistan and a broken promise to Afghan refugees.
  3. It is not only through the ‘bespoke’ schemes in which people are treated differently in their access to family reunion. In order for children to reunite with their parents under the Refugee Family Rules, their parent must have refugee status or humanitarian protection in the UK. Children wanting to join parents or other relatives who were refugees but now have British Citizenship and Indefinite Leave to Remain status cannot apply under the Refugee Family Reunion Rules – they must rely on other, more restrictive provisions under the Immigration Rules. In these cases, child refugees and their families often have to meet stringent evidential and financial requirements, which make it very difficult to reunite. More than half of Safe Passage’s family reunion cases since Brexit have been children reuniting with family members with British citizenship or Indefinite Leave to Remain status.
  4. To ensure that children seeking asylum are not prevented from accessing a safe route to family in the UK by their family member’s status in the UK, we recommend that the Government reforms the Immigration Rules. We recommend that the Government introduces the new provision detailed above (see question 1). This would allow children to join family in the UK as long as their family member was ordinarily and legally resident here, including refugees, those with British citizenship or indefinite leave to remain.
  5. Under the new Nationality and Borders Act, refugees are treated differently depending on how they travelled to the UK. The Act introduced a two-tier system for refugees, applying punitive conditions on those who are forced to take a dangerous journey to the UK. Under this system, refugees are categorised as ‘Group 1’ if they have travelled directly from the country or territory where their life or freedom is threatened and made an asylum claim without delay, everyone else is placed in ‘Group 2’.
  6. Group 2 refugees are denied vital rights, including to family reunion. The loss of family reunion rights will not only impact refugees already here but will deny their family - most often women and children - a safe route to protection.
  7. We believe this violates the UK’s obligations under international refugee and human rights law, including children’s rights. Everyone has the right to asylum and all refugees should enjoy full protection and rights, including to family reunion, regardless of how they travel to or arrive in the UK.
  8. We recommend that the Government ensures that all refugees, no matter their nationality or means of getting to the UK, have the same rights to protection and to family reunion.

How migration policies affect families

8.               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. As they stand, family migration policies are failing children separated from their parents or family. Leaving children stranded alone without a safe route to close family in the UK is a critical failure in refugee and child protection – it puts children at risk.
  2. Since Brexit, the UK Government has refused to replace the EU’s Dublin III Regulation, which provided for family reunion. With no comparable safe route to the UK, children and families are now reliant on the UK’s broken Immigration Rules (see question 1). The UK’s rules are too restrictive and take too long. Of the family reunion cases we supported to access the EU’s Dublin III, we estimate 95% would be very unlikely to qualify under the UK’s current Immigration Rules.
  3. In 2020, Safe Passage worked on 134 cases, which were accepted under the EU’s Dublin III Regulation. Since January 2021, only 6 of the children we’ve supported have had their cases accepted under the Immigration Rules.
  4. Family reunion isn’t working for unaccompanied children trying to join family here in the UK – and it’s not working for unaccompanied children in the UK either. Unaccompanied child refugees who do make it to the UK are prevented by the UK Immigration Rules from sponsoring their parents or other adult relatives.
  5. Sometimes children become separated from their parents and are forced to take dangerous journeys to reach safety in the UK on their own. Having reached sanctuary in the UK, these children are then denied reunification with even their closest family members.
  6. In one of our cases, an Afghan child, Danial, was safely evacuated to the UK with his father, but his mother was left behind.  Under the UK’s stringent rules, Danial cannot sponsor his mother, and having divorced, his father cannot sponsor her either.[v] Now, his mother is stranded in a refugee camp with no legal status, and Danial has lost hope of ever seeing his mother again.
  7. The Government has argued that supporting child refugees in the UK to reunite with their adult relatives would see more children coming here alone in order to bring their family across too. Research from UNHRC counters this claim – showing that children do not set out with an idea of travelling to the UK, but instead to escape.[vi] Children come to the UK for many reasons, including family in the UK, language, community, friends and smugglers. Under the EU’s Dublin III, child refugees can sponsor family members and EU Member States have not found that this has caused children to be sent ahead to sponsor family members.[vii]
  8. We recommend that the Government allows refugee children in the UK to sponsor their adult relatives.
  9. What we do know is that when children have no safe route to reach families, they are likely to risk their lives on dangerous journeys to reach loved ones. Children are particularly likely to resort to people smuggling when family reunion is delayed or at risk.[viii] None of our cases under the EU’s Dublin III risked a dangerous journey in 2020. In 2021, more than a half of the unaccompanied children we worked with lost faith in the legal process and travelled to the UK irregularly, instead of pursuing an application under UK’s Immigration Rules.
  10. Denied family reunion, unaccompanied children are in incredibly vulnerable situations. They are alone and often living in shelters or on the streets. Every day at least 17 unaccompanied children in Europe go missing, with many believed to have become victims to violence, exploitation and trafficking.[ix]
  11. Family separation is extremely difficult for children, and has a significant impact on mental health. These are children who have often experienced trauma – both in the country they fled and on their journey too. Most of the children we work with experience mental health problems, like depression, PTSD and anxiety, and self-harm or think about suicide. Children who are separated from their parents or caregivers are more likely to experience mental health problems, compared with refugee children who are with their family.[x]
  12. Families face significant barriers to staying in contact while they are separated, and even if families are able to stay in touch, communicating remotely is no substitute for an in-person relationship or being cared for by a loved one.
  13. Refugees often lose contact with their family members after fleeing their homes. There are often problems with access to the internet or lack of phone credit, especially where refugees are in precarious living situations. Families are also under a lot of stress and may struggle to communicate regularly.
  14. In the legal cases we assist, we often see that the Home Office scrutinises how family members communicate with one another as a means of measuring the validity of their relationship. We’re concerned that communication does not necessarily indicate the strength of the ties between family members, especially when there are often barriers to communications like access to a phone. Whilst evidence of communication should be considered as evidence of the family tie, it is not necessarily determinative of a relationship. For children, communication over the phone or internet is also no replacement for being cared for, and living with or close to their family.

9.               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?

  1. Families face significant barriers to reunification under the UK’s broken Immigration Rules (see also above questions). Unable to meet the requirements, at best, families are left waiting months alone and separated from family – at worst, they are prevented from safely joining loved ones at all.
  2. Whilst separated from family, unaccompanied children are living in incredibly vulnerable situations. Whether in overcrowded official refugee camps or informal settlements on the streets, children face serious risks such as unsafe sanitary conditions and fire hazards. Unaccompanied children are particularly at risk of violence, labour or sexual exploitation and trafficking. According to the UNHCR, girls tend to be trafficked to the UK for the purposes of sexual exploitation, whereas boys tend to be brought to the UK for forced labour, including for the growing of illegal cannabis, the car wash industry or nail bars.[xi]
  3. As a result of the lack of safe routes, we are also concerned that some children are travelling irregularly to try and join family, instead of going into shelters and accessing child protection systems. Smugglers are able to give children an alternative – albeit incredibly dangerous – route. At great risk, children can reach family members in just a few days, rather than the months it takes to try and come through family reunion. Before Brexit, the assurance of a safe route via Dublin III was enough to convince children to access child protection whilst waiting to join family. With family reunion cases now taking months with no guarantee of success, we can no longer compete with the promises made by smugglers to children, which puts children at enormous risk.
  4. As well as seriously impacting the wellbeing of the child (see question 8), barriers to family reunion also place great stress on the wider family too. For the family member in the UK, there is significant stress and pressure, as they are often the only relative able to help their family member to safety. Reforms to family reunion, as given in our recommendations, are desperately needed.
  5. In addition to fixing the Immigration Rules, further changes are needed to the process by which applications are made to reduce risk and prevent delays.
  6. Currently, some children and families are forced into making dangerous journeys just to complete their application process. Just to apply for family reunion, family members must attend a Visa Application Centre (VAC) to have biometrics taken, submit a passport or identity document, and collect the decision. Getting to a VAC can include crossing conflict zones and closed borders, with 1 in 5 having used smugglers to cross borders as part of their journey to make their application.[xii]
  7. Given that the embassy in Kabul is now not operational, those in Afghanistan wishing to reunite with family members in the UK must find a way their way to another Visa Application Centre. For many, the nearest VAC is in Islamabad – across the border in Pakistan and some 400km away from Kabul.
  8. We recommend that the Government reforms the family reunion application process so that it is efficient, safe and accessible.
  9. The Government have recently introduced the possibility for biometric enrolment to be waived discretionally by the Home Office if "exceptional individual circumstances" can be shown. We are concerned that this sets an unreasonably high threshold which will be very difficult - if not impossible - to meet. We are concerned this will add to already very lengthy processing times, especially if Ministerial approval is required.
  10. We recommend that people should only be required to attend a VAC after a provisional positive decision has been made on their application to submit their biometrics. Where a decision is negative, refusals should be sent via email.
  11. Once children and families have applied for family reunion – navigating the complex rules, meeting all the requirements and overcoming all the challenges in submitting their application – then they face long delays in getting a decision.
  12. Currently, the Home Office has doubled waiting times in order to prioritise processing visas for Ukraine refugees. Now the Home Office’s service standard wait times have increased to 12 weeks for Refugee Family Reunion applications and 24 weeks for all other family visas. Of the 21 cases we’re currently working on, in which the application has been submitted and a decision is pending, 15 are delayed both beyond the standard processing time and also beyond the extended processing time. One fourteen-year-old child we’re supporting had been waiting two months for a decision in a refugee camp in eastern Europe when he was told that he’d have to wait another four months.[xiii] Such delays can cause some children to lose faith and attempt dangerous journeys instead, so they can reach their family.
  13. The Government must urgently invest in speeding up decision making and increasing capacity to ensure all those at risk are not left in danger.

9.               How should family migration policies interact with the right to respect for family and private life and the best interests of the child? What can the immigration process learn from the family justice system and how could they best interact with one another?

  1. Under the EU’s Dublin III, which the UK left as a result of Brexit, there are strong mechanisms in place to ensure that EU Member States properly consider the best interests of the child when making a decision about family reunion cases. We are concerned that since leaving the EU, the UK Government is failing to prioritise and apply this principle fairly and correctly in family reunion cases under the UK’s Immigration Rules or “outside the rules”.
  2. In the legal cases we assist, we often see the Home Office reject family reunion cases despite clear evidence that such a decision is detrimental to the child’s wellbeing. This has been confirmed by independent social workers and psychologists who have assessed these cases and reported that it is in the child's best interests to be reunited with their families. In the family justice system, there is consensus around the welfare checklist in the Children’s Act and the expertise of professionals, such as social workers, is much more accepted and relied upon in decision-making. There is a stark contrast here, and much could be learned from that in the immigration context.
  3. Under the Immigration Rules, some unaccompanied children are required to meet unreasonably high evidential thresholds to prove ‘serious and compelling circumstances’ in order to reunite with family in the UK. When refusing one case, the Home Office said: “You currently live in a shelter for unaccompanied Minors... I note you have provided no evidence why this arrangement cannot continue or any serious and compelling considerations in your case.” Article 10 of the UN Convention on the Rights of the Child requires countries to respond positively and expeditiously to family reunification requests by children, and separation from family is a key consideration in determining the best interests of the child. For the UK Government to dismiss the fact of a child's separation from their family as 'not serious and compelling' shows a clear lack of priority being placed on the best interests of the child, as well as the rights enshrined within the Convention.
  4. We recommend that the Government ensures that the best interests of the child principle is prioritised in Home Office decision making and fairly applied.
  5. Currently, the onus is on the child to know the rules and evidence their family reunion claim, which results in children being less likely to access their rights. Following the example of Dublin III, an inter-state mechanism for family reunion would provide clear responsibilities on states and set out timelines for decision making. Coordination between the EU and UK could also assist with better support and integration for the child and family members, both before and after reunification.
  6. We recommend that the Government coordinates with the EU on family reunification, to ensure that the responsibility for reuniting families sits with governments – not the child.
  7. Looking at the interaction between family migration policy and the right to respect for family life, the stringent requirements of the Immigration Rules force many families to apply “outside the rules”. In these cases, families must show there are “exceptional circumstances or compassionate factors”, which could breach their right to family life under Article 8 of the European Convention of Human Rights. All the unaccompanied children we work with at Safe Passage rely on their right to family life in their applications for family reunion. Children whose applications are wrongly refused as a result of poor-quality decision-making by the Home Office only have a statutory right to appeal against the decision because the decision is a human rights decision - it involves the right to family life, as protected by European Convention of Human Rights. Whilst Article 8 is a vital minimum safeguard, children should not be relying on Article 8 and Home Office discretion in this way. The Government must instead reform refugee family reunion so that it is fit for purpose and better protects the right to family life.
  8. With all the children we support relying on Article 8 in their family reunion cases, we have been extremely concerned by the recent attacks on our human rights protections by the Government. We welcome the decision to shelve the proposed "Bill of Rights”, and urge the Government to now commit to uphold the existing Human Rights Act.

 

September 2022

 


[i] UNHCR (2019) Destination Anywhere

[ii] https://www.itv.com/news/2022-08-18/afghan-families-separated-those-left-behind-face-the-death-penalty

[iii] No official statistics on this exist but see research from Refugee Council, Amnesty International & Save the Children (2020) Without My Family

[iv] Unaccompanied asylum-seeking children and their families can face a £1523 fee, if the child is joining a relative who is a British citizen or has indefinite leave to remain

[v] https://inews.co.uk/news/world/afghan-boy-despair-uk-government-rejects-mother-application-1690069

[vi] UNHCR (2019) Destination Anywhere

[vii] . House of Lords, European Union Committee, “Children in crisis: unaccompanied migrant children in the European Union”, 26 July 2016

[viii] UNCHR (2019) Desperate Journeys

[ix] 18,292 unaccompanied child migrants went missing in Europe between January 2018 and December 2020, according to the Guardian and Lost in Europe collective (2021) Nearly 17 child migrants a day vanished in Europe since 2018

[x] Kohli, 2007

[xi] UNCHR (2019) Desperate Journeys

[xii] British Red Cross (2020) The Long Road to Reunion

[xiii] https://www.independent.co.uk/news/uk/home-news/child-refugees-visas-waiting-time-ukraine-uk-b2077384.html