UNHCR– Written evidence (FAM0083) 

a.            The Office of the UN High Commissioner for Refugees (UNHCR), is a non-political, humanitarian organisation. The High Commissioner is entrusted by the United Nations General Assembly with responsibility for providing international protection to refugees and together with governments, seeking permanent solutions to their plight.[1] Additionally, UNHCR has been formally mandated by the UN General Assembly to work with governments to reduce statelessness around the world, as well as to protect the rights of stateless people.[2]

b.            UNHCR's supervisory responsibility under its Statute is reiterated in Article 35 of the 1951 Convention relating to the Status of Refugees (“the 1951 Convention”)[3] according to which each State party undertakes to “co-operate with the Office of the United Nations High Commissioner for Refugees [...] in the exercise of its functions and shall in particular facilitate its duty of supervising the application of the provisions of the Convention.” The same commitment is included in Article II of the 1967 Protocol relating to the Status of Refugees.[4]

c.             UNHCR’s submission focuses on those areas of interest raised by the Justice and Home Affairs Committee that are most relevant to UNHCR’s mandate and its experience in the UK context. The submission primarily addresses the situation of refugees, however many of the considerations may also apply to stateless persons applying for family reunification.

d.            For the avoidance of doubt, references to family reunion, refugee family reunion or refugee family reunion policy refer to applications under Part 11 of the Immigration Rules and related provisions which allow applicants to join family members holding refugee status or humanitarian protection in the UK.

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. There is no internationally agreed definition of the concept of family, and the interpretation of the concept varies among countries and regions. UN treaty bodies and UNHCR’s Executive Committee (“ExCom”) have, however, adopted a broad interpretation of the concept of family, and ExCom has called on States to apply liberal criteria in identifying family members who can be admitted, with a view to promoting a comprehensive reunification of the refugee family.[5]
2. In considering the definition of family, UNHCR recognises that the concept of dependency is central to the factual identification of family members. Given the disruptive and traumatic aspects of the refugee experience, the impact of persecution and the stress factors associated with flight to safety, refugee families are often reconstructed out of the remnants of various households, who depend on each other for mutual support and survival. These families may not fit neatly into the concept of a nuclear family within the UK context (adult couple and minor children). In some cases, the composition and definition of the family is determined by cultural factors, in others, it is a result of the refugee experience.[6]
3. UNHCR therefore advocates that the concept of the family should be interpreted flexibly by States, reflecting strong and continuous social, emotional, or economic dependency between family members, though which does not require complete dependence.
4. In the UK, adult refugees and beneficiaries of humanitarian protection have the right to apply for family reunification with “immediate” relatives, meaning pre-flight spouses or unmarried children under the age of 18. There is no clear pathway for refugees to be reunited with other family members, even where relationships of dependency exist between those individuals. UNHCR encourages the UK to apply a broader definition of family which extends beyond the current definition of “immediate”. The understanding of “family” which informs procedures for family reunification should be enriched through flexibility that includes cultural considerations of an applicant’s country of origin, as well as considerations of the refugee experience and its impact on family composition.
5. The  UK  Government has  responded  to  concerns raised  that  the eligibility  criteria  for  refugee  family reunion are too narrow by highlighting that Home Office caseworkers must consider  whether there  are  any exceptional circumstances  or  compassionate  factors  which  may  justify a grant of leave outside the Immigration Rules.[7] Whilst we reiterate that the definition of family members should be expanded in line with the above, in the absence of such amendments, UNHCR wishes to emphasise that the Home Office guidance to decision-makers should ensure that the consideration for exceptional and compassionate factors takes sufficient account of relationships of dependency.

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. Nationality and Borders Act 2022

The Nationality and Borders Act 2022 creates two tiers of refugee status under UK law, in which only “Group 1” refugees benefit from the rights guaranteed to all refugees by the 1951 Convention. Under section 12(1), “Group 2” refugees have no entitlement to family reunion unless it would be a breach of the UK’s international obligations (flowing from Article 8 of the European Convention on Human Rights (“ECHR”)) to refuse. UNHCR’s observations on the Nationality and Borders Bill[8] (now Act, “NABA”) assert that this measure is at variance with the right to family life and the principle of family unity. It would also run counter to decades of international consensus that refugees should “benefit from a family reunification procedure that is more favorable than that foreseen for other aliens”.[9]

More detail on the expected impact of this measure on Group 2 refugees is set out below.

2. Child sponsors

There is no provision for a child refugee to sponsor his/her parents under the Immigration Rules. The Home Office’s policy provides: “The parents and siblings of a child who have been recognised as refugees are not entitled to family reunion under the Immigration Rules.”[10]

The Home Office asserts that this policy is “a considered position designed to avoid perverse incentives for children to be encouraged or even forced to leave their country and undertake a hazardous journey to the UK” and maintains that “[a]llowing children to sponsor their parents would play right into the hands of traffickers and criminal gangs and go against our safeguarding responsibilities.”[11] Such cases may exceptionally be considered by the Home Office for admission to the UK outside the Immigration Rules. It appears, however that consideration of what is considered “exceptional” or “compassionate” is not always consistent. A 2019 inspection by the ICIBI highlighted found that asylum caseworkers have a different understanding of exceptional circumstances and compassionate factors when compared to entry clearance officers.[12]

The result of the policy is that child refugees are treated differently to adult refugees. UNHCR has expressed concern over this policy approach, most notably highlighting the detrimental impact on refugee children’s integration and well-being. Moreover UNHCR is concerned that there is no sufficient evidence to justify this policy or its impact. For example, according to the UK House of Lords’ EU Committee there is:

“no evidence to support the Government’s argument that the prospect of family reunification could encourage families to send children into Europe unaccompanied in order to act as an ‘anchor’ for other family members. If this were so, we would expect to see evidence of this happening in Member States that participate in the Family Reunification Directive. Instead, the evidence shows that some children are reluctant to seek family reunification, for fear that it may place family members in danger.”[13]

At the time of writing there is an on-going application for judicial review on this matter. UNHCR has intervened as a “friend of the court” in order to clarify international refugee law relevant to the issue.  

3. Ukraine Family Scheme

A bespoke scheme introduced in response to the displacement of Ukrainians in early 2022, the Ukraine Family Scheme, included a broader definition of “immediate” family members than that applied in the context of refugee family reunion. Those covered under the scheme include unmarried partners (who have been living together in a relationship for at least two years), fiancés and proposed civil partners. It also enabled children to sponsor their parents and further allowed “extended” family members to apply to join their UK relatives. Unlike other family visa schemes outside the refugee context, family members are exempt from the income requirement and applicants do not have to prove their knowledge of English. The Ukraine Family Scheme also removed the requirement for applicants with an international passport (even if expired) to give biometric information.

The unique arrangements set out in this bespoke immigration pathway contain important lessons for refugee family reunion policy. Greater flexibility, such as the above, in refugee family reunion may positively impact refugees in the UK by reducing application waiting times and risks that may be faced by their relatives overseas, some of whom will themselves be refugees or have other international protection needs. 

3. Does the financial requirement for spouses and partners (also known as “minimum income requirement”) achieve its objectives? How could the requirement, and the process of demonstrating it is met, achieve them better? How could it be adapted to reflect changes in the economy and the labour market? Are there any unintended consequences for individuals and families?

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How family migration policies affect society

4. What are the fiscal and economic impacts of family migration policies, for instance in respect of the labour market, recruitment, productivity, and innovation?

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5. What is the impact of family migration policies on public services?

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6. What is the impact of family migration policies on local authorities?

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How migration policies affect families

7. In what circumstances may family immigration law and practice result in an extended (or indefinite) period of family separation or place families under stress in other ways? How could they be adapted to prevent or shorten periods of family separation or be more accommodating of the wellbeing of families?

1. Although some of the requirements generally applicable to family visa applications are waived for refugee family reunion applications, certain barriers remain. These notably include the limited definition of family;[14] the restriction of rights for “Group 2” refugees; the absence of legal aid;[15] challenging in securing documentation to prove family links; the high costs involved (DNA tests, translations of documentation, travel etc); and in certain circumstances, an inability to attend embassies, consulates, or Visa Application Centres as there may not be one in their country, or travel may be hazardous.
2. The result is that refugees in the UK often find themselves separated from family for extended periods or unable to reunite with them at all. This can have serious consequences for both refugees and their family members (who often are also in need of international protection). For refugees in the UK, family reunification can play an essential role in helping them rebuild their lives and providing critical support as they adapt to new and challenging circumstances. UNHCR and civil society organizations in the UK have observed the negative impact of family separation on the integration potential of refugees in the UK.[16] UNHCR studies on refugees in the UK have also highlighted the negative impact of separation on their overall well-being, including  mental health problems, with some feeling almost paralysed in their everyday life and unable to interact with the world around them.[17]
3. As a result, UNHCR advocates for the following:

•     allow for reunification of families in a wider set of circumstances than under current policy. This includes: a) allowing child refugees in the UK the right to sponsor their close family members, so they can rebuild their lives together and help them integrate in their new community; and b) expanding who qualifies as “family”, applying a more flexible approach that enables refugees to reunite with, inter alia, adult relatives such as elderly family members, adult children or siblings, where there a relationship of dependency.
•     reconsider legal aid restrictions in England and Wales for beneficiaries of international protection seeking family reunion. Bringing refugee family reunion applications within the scope of legal aid would almost certainly shorten the period of family separation, improving well-being and facilitating the exercise of refugees’ right to family unity.
•     explore flexible options for refugee family reunion applications to be lodged and visas collected in locations where refugees’ family members are unable to access UK Embassies, High Commissions, Consulates or Visa Application Centres.

4. Finally, UNHCR notes that the bespoke immigration pathways introduced in response to more recent refugee crises can result in extended family separation, placing families under stress. For example, UNHCR understands that many of those evacuated from Afghanistan under Pathway 1 of the Afghan Citizens Resettlement Scheme have been unable to reunite with family members, including pre-flight spouses and minor children, due to unclear family reunification rights attached to their status. In addition, Ukrainians who have entered or extended their leave in the UK through the Ukraine schemes do not have a right to bring their immediate family members to the UK in view of their temporary status, in contrast to those with refugee status and humanitarian protection. As a result, they rely on others to sponsor their families through the Homes for Ukraine Sponsorship Scheme. Lack of provision for family reunification for these groups has led to prolonged separation and uncertainty, and may increase dependency on and risk of exploitation from employers.

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. Children separated from their parents and families because of conflict are among the most vulnerable displaced persons.[18] Thus, the right to family unity afforded to refugees under international law is especially important for unaccompanied children, whose vulnerabilities are increased when they are separated from their parents or customary caregivers.
2. In the UK, there is no provision for a child refugee to sponsor their parents under the Immigration Rules, as noted above under Question 2. UNHCR has found that the inability to apply for their parents or other relatives to join them has had an extremely detrimental impact on their mental health and overall well-being.[19] In addition, unaccompanied children and young people have found it difficult to focus on building a new life in the UK without the support of family, and whilst living with the grief of separation.
3. The reality for many children in the UK who are separated from their family is that they are not able to maintain direct or frequent contact with family members. This may be due to a variety of reasons, including those linked to displacement. It should be noted that the reasons for children not being in contact with their parents or relatives can be complex. Aside from practical challenges such as lack of internet connection, sometimes, a child may be under instruction (by family members or smugglers) to resist making contact, or may not attempt to do so owing to the fear of disappointment if they are not able to find their family. A report by UNHCR found that some children were not contacting their parents or siblings in their country of origin, even by telephone, for fear that such contact would draw adverse attention to their family and put them at risk of increased scrutiny or persecution by the authorities.[20] UNHCR has highlighted this in further detail  at paragraph 4.2 of our report Destination Anywhere[21] and chapter 8.2 of A Refugee and Then…[22]
4. Similarly, for unaccompanied refugee children overseas seeking to reunite with family in the UK,  it can be particularly challenging for them to maintain frequent and direct contact with their sponsor due to cost or their precarious living circumstances.

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. It is generally agreed that the family is the fundamental group unit of society entitled to protection by society and the State.[23] In international refugee law, the 1951 Convention does not specifically refer to the family. However, the Final Act of the Conference of Plenipotentiaries, at which the 1951 Convention was adopted, refers to “the unity of the family ... [as] an essential right of the refugee” and recommends that Governments “take the necessary measures for the protection of the refugee’s family, especially with a view to ensuring that the unity of the family is maintained.”[24] ExCom has adopted a series of conclusions that reiterate the fundamental importance of family unity.[25]
2. In the UK, the right to respect for family life is protected by Article 8 of the ECHR, to which the UK is a party and with which public authorities must comply in accordance with Section 6 of the Human Rights Act 1998. In October 2018, the Parliamentary Assembly of the Council of Europe (of which the United Kingdom remains a member) adopted Resolution 2243 (2018) on Family reunification of refugees and migrants in the Council of Europe member States. This concluded:

“Hindrances to the protection of family life are not admissible under Article 8 of the European Convention on Human Rights to deter migrants or refugees and their family members.”[26]

3. The European Court of Human Rights (“ECtHR”) has held that Article 8 requires that decision making in refugee family reunion applications be “flexible, swift and effective”.[27] Any “restriction” on refugee family reunion as a penalty for claiming asylum in the UK rather than elsewhere, for delaying a claim or for unlawful entry or presence is likely to breach the UK’s obligations under Article 8 and violate Article 6 of the Human Rights Act.
4. Article 8 of the ECHR also requires States to facilitate reunification both procedurally and substantively between parents and child refugees, including where the family is outside Europe. For example, in Saleck Bardi c. Espagne, Requête (Application no. 66167/09), ECtHR, 24 May 2011, at paras [§50-53], the EctHR ruled that a parent’s right to be reunited with his or her child creates a “positive obligation” for States to take measures to fulfil that objective. It continues that for this to be effective, measures to reunify a parent and child must be put in place promptly since the passage of time can cause irremediable damage to the parent-child relationship if they are separated.[28]
5. In addition, the UN Convention on the Rights of the Child (“CRC”) sets out some of the strongest protections of children’s rights, including the requirement that “[i]n all actions concerning children … the best interests of the child shall be a primary consideration” (Article 3). States must ensure they fulfil their responsibilities including the obligation to “respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family … to provide appropriate direction and guidance” (Article 5); “to respect the right of the child to preserve his or her identity, including [his or her] family relations” (Article 9); to “ensure that a child shall not be separated from his or her parents against their will”, except where this is in his or her best interests (Article 9); to deal with applications for family reunification “in a positive, humane and expeditious manner” (Article 10); to ensure that no child is “subjected to arbitrary or unlawful interference” with his or her private and/or family life (Article 16); to respect the “common responsibilities [of both parents] for the upbringing and development of the child” (Article 18); and in the case of an unaccompanied asylum-seeking or refugee child to cooperate in family tracing initiatives “to obtain information necessary for reunification with his or her family” (Article 22).
6. In the UK, children’s best interests are to be assessed as a primary consideration in all legislative, administrative, or judicial actions or decisions affecting them, directly or indirectly. Section 55(1) of the Borders Citizenship and Immigration Act 2009 imposes a duty to have regard to the need to “safeguard and promote the welfare of children”. R (Project for the Registration of Children as British Citizens) v SSHD [2021] 1 WLR 3049 at [§70] says “Although section 55 uses different language [to CRC, Art 3(1)], it is conventional and convenient to refer to a duty under section 55 as being to have regard, as a primary consideration, to the best interests of the child.”
7. Considering the above, UNHCR reiterates that States should facilitate family reunification. Notably, in the UK, access to family reunion should apply to all refugees regardless of mode of arrival or the timing of their asylum claim. In addition, applications by child refugees should be considered in a consistent, positive, humane, and expeditious manner in line with their best interests. As such, all child refugees must have an unqualified right to apply for family reunification.

10. How do family migration policies and their implementation affect the integration and participation in British society of (would-be) sponsors and their sponsored family members?

1. Family separation can have devastating consequences for the well-being of refugees and their ability to rebuild their lives. Family unity is central to bringing normality into the lives of displaced persons, and is often their key priority. The integration of refugees separated from their family members is hindered in many aspects, negatively impacting their ability to engage in education and employment, while also negatively impacting their physical and emotional health. Integration may be greatly facilitated by reunion with close relatives, whose presence can help displaced persons restart their lives and set up roots within a new community.
2. Barriers to accessing family reunification in the UK can result in prolonged family separation and UNHCR as well as other stakeholders have documented the negative impact that this can have on their integration and participation in society.
3. UNHCR has conducted several participatory assessments with refugees and stateless persons in the UK. Interviewees consistently find it extremely difficult to speak about family separation - an indication of the significance of family to them. In one UNHCR study,[29] one participant stated:

              “Not having someone with you from your family is like one of your body parts is cut off. Not having them affects you no matter how well off you are here or what decent job you have. If your family is not with you, then you are not happy. And when you have a child in the UK, you can teach them British values.”

Another asserted that: “If my mother was here, I could have good relations with my neighbours…we could bring some home-cooked food… for now they see me as a single man and are hesitant to get to know me.” They highlighted the importance of having their family with them for their own integration in the UK.

4. Another UNHCR study has highlighted the impact family separation can have on the mental health of refugees. A 2019 assessment with refugee women noted that many of them lacked clarity regarding family reunification opportunities and which family members may be eligible to join them in the UK. The distress and lack of understanding was considered by participants to cause anxiety and distress. They stated they were unable to concentrate on English language classes and were not able to focus on daily tasks.[30]
5. It should be emphasised that family separation affects a multitude of areas relating to integration for those in need of international protection, including refugees and stateless persons. These include the ability to learn a language, to re-train, to negotiate bureaucracy, to search for work, to look for housing, and to build friendships. Furthermore, enduring isolation and grief in the absence of family members reduces an individual’s ability to function.[31]             

September 2022