Samina Iqbal and Sarah Pinder, Goldsmith Chambers - Written evidence (FAM0085)

We write in response to the Call for Evidence in relation to Family Migration.  This document represents the collaborated views of Samina Iqbal and Sarah Pinder, joint-heads of Goldsmith Chambers’ Immigration and Public Law Team. Both are specialist immigration barristers leading a 40+ strong team with extensive experience before the Immigration Tribunals and higher courts. They are both ranked in Chambers and Partners as well as Legal 500 and under their watch the team is also ranked as a Leading Set in this field in the Legal 500.

We have considered the following matters:

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?

The definitions or the qualifying criteria for a relative to be able to join family members in the UK is not consistent across immigration pathways.  In particular and most recently, the range of relatives is much wider for the various Ukrainian citizen schemes and members of different communities/different nationals have questioned why this is the case and whether this is justified and/or fair.  From our casework and our practice as immigration lawyers, we are aware that many other citizens from different war-torn/affected countries do not view this as fair and going forward, we would agree that this needs to be considered in more depth.

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?

As above.

In addition, the more recent family reunion schemes relating to Ukraine and Afghanistan have moved away from the family reunion principles in the Refugee Convention/as interpreted by the UK Courts.  This is because the main applicants being relocated from either Ukraine or Afghanistan are not granted refugee status but instead a bespoke visa enabling their relocation - for a period of three years initially in the case of Ukraine and on a permanent basis in the case of Afghanistan.  This inevitably involves complex rules that differ from scheme to scheme and that are often slow to be implemented in practice.

The procedures for family members to apply to join main applicants as part of these most recent schemes are also opaque, with no or little guidance published in the public domain.  There still lacks an actual application procedure for entry clearance for family members of Afghan citizens granted Indefinite Leave to Remain under the Afghan Citizen Resettlement Scheme (ACRS) for example.  Refusals in Ukraine/Afghanistan relocation applications and family member applications do not attract a statutory right of appeal either and so there is differential treatment in relation to the available administrative and judicial redress procedures and remedies, compared to family reunion applications when the main applicant has been granted refugee status.    

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? 

We are of the view that the evidential requirements in the Immigration Rules, which set how the minimum income requirement is to be demonstrated in support of an application, are overly strict, inflexible and very onerous.  Applications are refused for very technical reasons without providing an opportunity for the applicant to correct any deficiencies or oversights.

UK Home Office/visa application fees for family members are amongst the highest and most expensive in the world yet the customer service and care is often lacking or completely absent.

We understand that the Minimum Income Rule was due to be reviewed and this has not yet taken place.  The Minimum Income Rule has been set at a higher level than the minimum wage per annum.  To our knowledge, there is little evidence that the Minimum Income Rule is required to ensure that applicants coming to the UK do not have recourse to public funds, particularly since their status until they secure permanent residence would not allow such access in most cases in any event.  In addition, the Immigration Health Surcharge has since been introduced which would also presumably alleviate any concern with regards to any pressures placed on the NHS.

In our experience, the Minimum Income Rule has impacted on many couples and families: very often forcing the settled spouse to work more than one employment, the reunion of families and couples is often delayed because time is needed to collate the necessary and correct evidence to demonstrate the Rule being met (by for example working in one employment for at least six months), and as mentioned above, the overly strict and inflexible nature of the evidential requirements often leads to poor decision-making and technicalities coming in the way of family life when in reality the settled spouse clearly has funds to support their partner.

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?

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

It is our understanding from numerous published research and reports that persons arriving in the UK from overseas generally have less recourse to public funds than they contribute by way of earnings and taxation.

The rules concerning elderly parents were very significantly changed in 2012 with the introduction of the Adult Dependent Relative rules.  We understand that the rules were changed due to concerns that the previous rules (Paragraph 317 in Part 8 of the Immigration Rules) enabled those arriving in the UK to claim public funds and this impacted on public services.  However, those previously granted leave as elderly parents under Paragraph 317 would not usually be allowed to access public funds for a period of five years following their entry into the UK.  This was a direct result of the sponsorship undertaking provided by their sponsor.  In addition, as mentioned above in answer to an earlier question, the Immigration Health Surcharge has also since been introduced.  This should again alleviate any concern with regards to any pressures on the NHS.

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

In our experience, if families are reunited, they are more self-sufficient and better integrated.  The adults are able to work and provide for their dependents and/or share the care of such dependents.  In contrast, unaccompanied minors and lone parents, who may not be able to sponsor their parents/relatives or partners, may require the support of the local authorities and/or have more access to public funds.

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?

There is a financial strain on the family in the UK sponsoring family members from abroad often leading to lengthy period of separation. Where there are large families, from patriarchal societies, this may result in male members of the family being sponsored first under family reunion rules and/or other immigration rules. This can leave the more vulnerable female and children in their home countries or where they have taken refuge in a neighbouring country, waiting in precarious circumstances.

The application fees have to be adapted to ensure those who are vulnerable are not left behind and that the family unit is not separated for a lengthy period of time.  Whilst there is a fee waiver policy in place this was only granted to in-country applications[1] and despite several Court rulings on this issue, the fee waiver has only recently been made available for overseas applications.  It remains to be seen whether the onerous evidential requirements to support such applications and the lengthy timescales that such applications usually take to be processed by the Home Office will present further hurdles and obstacles to this remedy being effectively utilised.

The change in rules concerning elderly parents is concerning.  Since 2012, very few applications under the ADR rules have been successful.  This is often a very real consideration for those who wish to come to the UK to work, such as in the health or tech sectors.  Whether they can or will be able to sponsor their parents once the time comes to look after them, can be a determinative factor as to whether the UK remains the preferred destination vs another country such as the USA, Canada, Australia or other European countries.

8. How do family migration policies affect children separated from one or both of their parents (or other relative)?

Often parents will attempt to ensure some stability in the UK having arrived on temporary visas such as student/working visas, before making any application for their children or family members to join them given the very high application fees as well as the financial thresholds to be met. This is without even considering the practical elements of relocating a whole family at once, for example in relation to accommodation, schools etc…. This inevitably means in a lot of cases that there is a delay to applications from further family members, often children, being made.  A decision maker then often considers this delay to demonstrate a break in the family bonds.

Another issue that arises in children cases is that they may turn 18 while their application/appeal is pending.  Whilst the rules allow for a child making an application to be treated as a minor while the application is pending, the delays in having this processed and the delays of any appeal if the application is refused, limit that child’s options for submitting a fresh application at a later stage since their age will be over 18 years old by then.  There is not enough flexibility in the current Immigration Rules to recognise the needs of young adults when they remain dependent, financially and in other ways, on their parent(s).

9. How do families separated by immigration law use modern means of communication, and what is the impact of this use?

The most popular means were previously via telephone calling cards and now with the increased reliability of the internet, whats app and other social media /video chats are popular. There are real difficulties with replacing a family life between a couple or between a child and a parent with ‘modern means of communication’.  This does not, for example, take into account the best interests of a child and the impact on their attachment with the ‘distant/remote’ parent. 

10. 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?

Section 55 of the Borders, Citizenship and Immigration Act 2009 places a duty on the Home Office, requiring them to make immigration decisions to safeguard and promote the welfare of children in the UK as they carry out their functions.  In line with this, the best interests of a child are a primary consideration.[2]

Immigration tribunals/decision makers will often be addressing the fine line between balancing the family (and private) life of an individual and maintaining the effective immigration control needs of the State. On the other hand, the legal framework of the Family law courts is governed by the Children Act 1989 with its starting point: the welfare of the child is paramount.1

Over time these difficulties have been recognised and attempts have been made to ensure some uniformity and consistency for individuals with parallel proceedings. This is by way of introduction of protocols, to ease communication between family and immigration jurisdictions as well as guidance contained in case-law handed down by the Upper Tribunal and the President of the Family Division of the High Court.

In our view, the immigration system should seek more proactively to collate a child’s view when potentially impacted upon by a decision.  It is accepted that the burden of proof lies with an applicant/appellant to demonstrate the family life but that shifts to the Home Office when it comes to demonstrating that an interference with such a family life is necessary, justified and proportionate.  Because most applicants/appellants are privately paying, it is very often not possible for applicants to secure the quality of evidence that is required.  Application fees are high, legal representation when privately-paying is expensive and most areas of immigration law, save for bail/detention and asylum, are out of scope of legal aid.  This means that expert reports from, for example, independent social workers, on the child’s views and the likely impact on their welfare of the Home Office’s decision are often out of reach of many privately-paying applicants/appellants.  Considering the SSHD’s duties under s.55, we consider that this requires further analysis.

11. 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?

From our experience, it is our view that family migration policies that enable and promote family reunion in turn impact positively on integration and participation in British society.

We hope that this feedback is of assistance and are available to discuss matters further if any further input is desired.

September 2022