Immigration Law Practitioners’ Association – Written evidence (FAM0101) 

Background

The Immigration Law Practitioners’ Association (‘ILPA’) is a professional association founded in 1984, the majority of whose members are barristers, solicitors and advocates practising in all aspects of immigration, asylum and nationality law. Academics, non-governmental organisations, and individuals with a substantial interest in the law are also members. ILPA exists to promote and improve advice and representation in immigration, asylum and nationality law, to act as an information and knowledge resource for members of the immigration law profession, and to help ensure a fair and human rights-based immigration and asylum system. ILPA is represented on numerous government, official and non-governmental advisory groups and regularly provides evidence to parliamentary and official inquiries.

Summary

This is ILPA's submission, which we ask be treated as written evidence for the purpose of the Justice and Home Affairs Committee’s Family Migration inquiry.

In relation to the definition of various familial terms in immigration law, while some have evolved over time, with a proliferation of further route-specific terms in recent years, the primary conception of the family within the legal framework is one of a nuclear family unit. Therefore, in many respects, the Immigration Rules remain out of date and fail to account for modern family formations and different cultural expectations, including through:

retaining the sole parental responsibility test;
various differing requirements for durable and unmarried partners, who are subject to historical assessments of their relationship;
failing to contain adequate avenues for regularisation when relationships break down, including due to domestic violence;
failing to contain avenues for family reunion with adult family members to secure intergenerational ties, including for elderly parents and disabled adult children;
higher documentary and evidentiary burdens for adopted children;
failing to provide a route to entry for a non-British parent of a child who is a British citizen or holds indefinite leave to remain and who is not living in the UK; and
insufficient acknowledgment of relevant family relationships for family reunion for those with refugee status and humanitarian protection in the UK.

Accordingly, there is still significant room for reform and inclusivity in defining family and familial relationships. Across the Rules, we would recommend a contemporary reflection of the family, in both ascending and descending lines. New routes such as Appendix Ukraine Scheme have shown that new definitions and interpretations of family relationships are possible within the Rules. These should be taken as best practice with a view to reforming the Rules, including the “mainstream” immigration pathways.

There is a discrepancy in the treatment of families in immigration law. The requirements that apply depend on the ‘route’ or ‘immigration pathway’ to which the applicant must apply, and when such an application is made. The bespoke pathways contain noteworthy distinctions, with the schemes for Ukraine being far more generous than those for Afghanistan in terms of who they encompass. However, bespoke routes are not a durable solution, nor is reliance on the Home Secretary’s overarching discretion to grant applications outside of the Rules. Neither ‘bespokism’ nor ‘discretion’ address the fundamental problem of the rigidity and stringency of immigration law and policy, which is insufficiently flexible to adapt and respond to unprecedented historical situations and crises. A flexible set of Rules is needed for all family members that provides sufficient and clear discretion within (not outwith) the Rules for the Home Secretary to consider applications in circumstances not envisaged at the time of drafting and/or permit her to disapply Rules, evidential requirements, and application procedures or processes, where necessary.

While the minimum income requirement’s objective to only allow sufficiently financially viable applicants to be granted visas as spouses and partners does appear to have been achieved, the complexity and rigidity of the evidence required to show that the requirement is met remains problematic. Specific examples of this arise for those relying on income from self-employment and as company directors, or as employees of a company where a relative is a director. However, there is a more pervasive problem, which could be addressed through greater flexibility in the Rules as to the range of resources that can be taken into account and the evidence required to prove finances in family applications, combined with greater willingness on the part of the Home Office to contact applicants to remedy applications.

Considerable harms arise for some families from the imposition of a No Recourse to Public Funds (‘NRPF’) condition on migrants’ limited leave to remain in the UK. This in turn has ramifications for local authorities, which have statutory duties to support children in need within their area, including children in destitute families subject to NRPF. Given the evidence of harm resulting from the current system and following recent research which found that removing the NRPF condition for certain groups with limited leave ‘would produce gains in excess of the costs’,[1] policy on the imposition of NRPF is ripe for urgent review, and consideration should be given to removing the condition altogether, particularly in relation to families with children.

Family immigration law and practice frequently cause periods of family separation. Procedural issues arising from delay in pending applications and appeals, combined with the inability to travel whilst an application is pending without an application being automatically withdrawn, or leave under section 3C of the Immigration Act 1971 lapsing, result in lengthy periods of family separation. The level of fees can also cause families to be separated, and place enormous pressure on families. Furthermore, the legal framework itself, such as the financial requirements, sole responsibility test, and limited categories of family members who are eligible to apply under the Rules, can also result in separation.

It is not clear that Immigration Rules or asylum and immigration policy are drafted or developed in a way that makes children’s interests a primary consideration. Furthermore, the Immigration Rules attempt to address the circumstances of children in a vacuum instead of as an integral part of their family unit. This may result in an impediment to a child accessing processes that are in their best interests and may even serve to bring a child’s best interests into conflict with those of their family members. A system designed with the best interests of children as a primary consideration would be simplified, streamlined, and consistent.

There is an existing close interaction between the family and immigration jurisdictions. There is much the immigration system can learn from the family justice system, in which the best interests of the child are paramount, such as through recognising transnational marriage abandonment as a form of domestic violence, and creating routes for entry of victims; providing adapted support for children who are before the immigration tribunals; providing policy guidance for children who are parties in litigation and those who are the subjects of or affected by the litigation outcome; giving priority to cases involving children, particularly children separated from family members; and accommodating varied family status and parental arrangements.

Finally, there are numerous ways that family migration policies and their implementation affect the integration and participation in British society of (would-be) sponsors and their sponsored family members. The first, and clearest, is whether the family can be reunited in the UK or whether the legal and procedural framework prevents it. However, once within the UK, rigid eligibility and evidentiary requirements, fees, delays in decision making, lengths of grants of leave, lengthy routes to settlement, restrictive conditions, continuous residence requirements, the culture of decision making, and the hostile environment all impede participation and integration in British society.

Design of family migration law

Question 1: How does immigration law define a “family” and a “relative”?

Primary legislation does not define a “family” or a “relative” across all immigration pathways. It does define certain relationships in British nationality law, such as ‘father’, for the purposes of the British Nationality Act 1981, which is defined in section 50(9A), in a manner that has evolved over time to include the husband or male civil partner of the woman who gives birth to the child, or a person treated as the father of the child or a parent under various sections of the Human Fertilisation and Embryology Acts 1990 and 2008, or a person who satisfies prescribed requirements as to proof of paternity. A child’s mother is defined in section 50(9) of the 1981 Act, for the purposes of that Act, as ‘the woman who gives birth to the child’.

However, for the purposes of immigration law, various definitions for different family members are created by the Immigration Rules (‘the Rules’), which are the Home Secretary’s statement of practice or ‘administrative policy’,[2] for ‘regulating the entry into and stay in the United Kingdom of persons required by [the Immigration Act 1971] to have leave to enter’.[3]

Neither “family”, nor “relative” is defined comprehensively or cohesively across the Rules. Therefore, the terms are not consistently defined across all immigration pathways. In our members’ experience terms such as “family” and “relative” have not been important historically, because immigration routes have not been so general as to require definitions of those terms. Terms such as “family member” and “extended family member” had greater relevance in the context of free movement within the European Union of citizens and their family members. For example, the term ‘family member’ is defined in Article 2(2) of Directive 2004/38/EC of the European Parliament and of the Council. In domestic law, in the Immigration (European Economic Area) Regulations 2016, a “family member” of a person, “A”, was defined in Regulation 7(1) as:

(a) A’s spouse or civil partner;

(b) A’s direct descendants, or the direct descendants of A’s spouse or civil partner who are either—

(i) aged under 21; or

(ii) dependants of A, or of A’s spouse or civil partner;

Nevertheless, one can find general definitions in paragraph 6.2 of the Rules for “Adoption”, “Child” (defined only as a person under the age of 18), “Civil partnership”, “Close relative”, “Legal guardian”, “Parent”, and “Partner”. The definitions have been created, because there are provisions in the Rules for certain people to apply to come to the UK because of their relationship with someone else already in the UK. The conditions on which they may be granted permission depend on the status of the person in the UK, and on their relationship. For example, ordinarily there are rules for partners and children under 18, but there are different requirements for married and unmarried partners, and for children joining or accompanying one parent than for those joining or accompanying both parents. “Adult dependent relatives” are more distant, and include brothers, sisters, parents of adults, aunts, uncles. Anyone else would be applying outside the Immigration Rules, if the reason for the application was to join someone already in the UK.
Paragraph 6.2 of the Rules also contains route specific definitions for family members under Appendix Hong Kong British National (Overseas),[4] and Appendix Ukraine Scheme, and a route specific definition for “Unmarried Partner” solely for Appendix ECAA Extension of Stay and Appendix ECAA Settlement.

At the outset, we must state that the definitions for family members that apply to the Appendix Ukraine Scheme are much more generous than anything ever before resulting from a conflict. We would suggest the familial definitions for the Appendix Ukraine Scheme be taken as best practice, for they acknowledge the width and inter-generational ties of a contemporary family:

UKR 6.2. Where applying as a family member under UKR 6.1., the applicant must be a family member in one of the following relationships (and, if the applicant is not Ukrainian, at least one of the immediate family members under (a) must be a Ukrainian national as in UKR 7.1.):

(a) an immediate family member meaning the:

(i) partner of the UK-based sponsor; or

(ii) child aged under 18 on the date of application of the UK-based sponsor or of the UK-based sponsor’s partner; or

(iii) parent of a child (who is under 18 on the date of application), where the child is the UK-based sponsor; or

(iv) fiancé(e) or proposed civil partner of the UK-based sponsor; or

(b) extended family member, meaning a:

(i) parent of a UK-based sponsor, or of the UK-based sponsor’s partner (where the sponsor or partner is aged 18 or over on the date of application); or

(ii) parent of the UK-based sponsor’s child or of the UK-based sponsor’s partner’s child (where the child is under 18 on the date of application); or

(iii) grandparent of the UK-based sponsor or of the UK-based sponsor’s partner; or

(iv) grandchild of the UK-based sponsor or of the UK-based sponsor’s partner; or

(v) sibling of the UK-based sponsor or of the UK-based sponsor’s partner; or

(vi) adult child (aged 18 or over on the date of application) of the UK- based sponsor or of the UK-based sponsor’s partner; or

(vii) aunt or uncle of the UK-based sponsor; or

(viii)cousin of the UK-based sponsor; or

(ix) niece or nephew of the UK-based sponsor; or

(i) partner of an extended family member; or

(ii) child aged under 18 on the date of application of an extended family member; or

(iii) parent of a child aged under 18 on the date of application, where the child is the extended family member; or

(iv)fiancé(e) or proposed civil partner of an extended family member.

Furthermore, paragraph 6.2 of the Rules contains the following definition applicable to Appendix Ukraine Scheme:

“Aunt” in Appendix Ukraine Scheme means the sister, or step-sister, of either of the UK-based sponsor’s parents, or the female partner of the UK-based sponsor’s uncle or aunt

“Cousin” in Appendix Ukraine Scheme means the biological, adopted or step-child of the UK-based sponsor’s uncle or aunt.

“Grandchild” in Appendix Ukraine Scheme means a biological grandchild, step-grandchild or grandchild by reason of an adoption recognised by the laws of the UK relating to adoption.

“Grandparent” in Appendix UK Ancestry and Appendix Ukraine Scheme means a biological grandparent or grandparent by reason of an adoption recognised by the laws of the UK relating to adoption.

“Niece” in Appendix Ukraine Scheme means the female biological, adopted or step-child of the UK-based sponsor’s brother or sister.

“Nephew” in Appendix Ukraine Scheme means the male biological, adopted or step-child of the UK-based sponsor’s brother or sister.

“Parent” includes:

(a) the stepfather of a child whose father is dead, and reference to stepfather includes a relationship arising through civil partnership; and

(b) the stepmother of a child whose mother is dead, and reference to stepmother includes a relationship arising through civil partnership; and

(d) an adoptive parent, where a child was adopted in accordance with a decision taken by the competent administrative authority or court in a country whose adoption orders are recognised by the UK or where a child is the subject of a de facto adoption in accordance with the requirements of paragraph 309A (except that an adopted child or a child who is the subject of a de facto adoption may not make an application for leave to enter or remain in order to accompany, join or remain with an adoptive parent under paragraphs 297 to 303); and

(e) in the case of a child born in the UK who is not a British citizen, a person to whom there has been a genuine transfer of parental responsibility on the ground of the original parents’ inability to care for the child; and

(f) in Appendix Ukraine Scheme a parent also includes a step-father or step-mother, whether or not the biological parent is dead.

“Sibling” in Appendix Ukraine Scheme means the UK-based sponsor or their partner’s biological, adopted or step-brothers and step-sisters.

“Uncle” in Appendix Ukraine Scheme, means the brother, or step- brother, of either of the UK-based sponsor’s parents, or the male partner of the UK-based sponsor’s uncle or aunt.

Similarly, in recognising the multi-generational nature of households, we welcome the creation of a route of ‘Household Members’ for adult children of British Nationals (Overseas), born after the handover of Hong Kong, and for their dependent partners and children, in Appendix Hong Kong British National (Overseas). However, that Appendix is inferior to the Appendix Ukraine Scheme, which provides greater recognition of relationships in the ascending line. Appendix Hong Kong British National (Overseas) retains the restrictive adult dependent relative criteria which apply to Appendix FM to the Rules.

Accordingly, across the Rules, we would recommend an inclusive and contemporary reflection of the family, in both ascending and descending lines, as has been taken in Appendix Ukraine Scheme.

Other than the definitions highlighted above, familial definitions are littered throughout the Immigration Rules. Appendix EU to the Rules contains an Annex of definitions, which are nearly impenetrable to both lay persons and legal professionals.

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?

There has been some evolution in the way the Home Office has thought about and implemented changes to relevant definitions over the past 30 years or so, slowly reflecting societal changes and expansion. However, change often comes through pressure and legislative challenges, rather than in a more organic way. The definitions evolve to gradually take into account and reflect the communities served by the immigration system, but often not without considerable work needing to be done to persuade the Home Office to be more representative and inclusive of public norms and accepted familial make up.

An example of the evolution was allowing cohabiting couples to apply for visas, rather than only spouses, and the eventual inclusion of same sex partners into the Immigration Rules, for most visa routes.

However, to lay bare the remaining complexity across the Rules, one need only examine the numerous definitions for an unmarried “partner”:

● Paragraph 6.2:

“Partner” means a person’s:

[...]

(c) unmarried partner, where the couple have been living together in a relationship similar to marriage or a civil partnership for at least two years.

“Unmarried partner”, under Appendix ECAA Extension of Stay or Appendix ECAA Settlement, means a person who is:

(a) resident with the ECAA worker or ECAA business person unless applying for entry clearance; and

(b) intends to live, or continue living, with the ECAA worker or ECAA business person; and

● GEN.1.2 of Appendix FM:

GEN.1.2. For the purposes of this Appendix “partner” means-

[...]

(iv) a person who has been living together with the applicant in a relationship akin to a marriage or civil partnership for at least two years prior to the date of application, unless a different meaning of partner applies elsewhere in this Appendix.

● RWP 5.1 of Appendix Relationship with Partner, which ‘applies to applications under Appendix Ukraine Scheme and Appendix Settlement Family Life’:

RWP 5.1. Where the applicant and their partner are not married or in a civil partnership, they must have been in a relationship similar to a marriage or civil partnership for at least 2 years before the date of application.

● The lengthy definition of “durable partner” in Appendix EU, which includes: ‘(a) the person is, or (as the case may be) for the relevant period was, in a durable relationship with a relevant EEA citizen (or, as the case may be, with a qualifying British citizen or with a relevant sponsor), with the couple having lived together in a relationship akin to a marriage or civil partnership for at least two years (unless there is other significant evidence of the durable relationship)’.

The Rules partially reflect contemporary societal understanding. They give recognition to marriage and civil partnership. However, the Rules impose arbitrary timeframes on whether an unmarried partner has been living with the sponsor in a relationship for at least two years prior to the date of application. Remote relationships, or non-cohabiting couples, face additional hurdles to entry.

Under most of the Immigration Rules, it is a requirement that a couple must have lived together in a relationship akin to marriage for at least two years. However, a positive recent development, Appendix Relationship with Partner (which applies to both the Ukraine Schemes and Appendix Settlement Family Life), alters the requirement to simply have ‘been in a relationship’ for at least two years. The Guidance states:

For a relationship to be similar to marriage or civil partnership the couple must usually have lived together as a couple (not just as friends) and shown an ongoing commitment to one another. However, in some circumstances there may be evidence of a durable relationship similar to marriage or civil partnership where the couple have not, or currently do not, live together.[5]

We would highlight this as better (albeit, not best) practice, and would welcome this more modern understanding of an unmarried partnership being applied across the Rules, including to Appendix FM, which is for partners of settled persons, British citizens, refugees, EEA Nationals with pre-settled status, and workers with limited leave as a worker or business person under Appendix ECAA Extension of Stay.[6] Partners of British citizens should not face more onerous requirements in proving an unmarried partnership than others in the Rules. However, it would also be welcome if the Home Office were to consider whether, across the Rules, an unmarried or durable partnership could be proven not only by length of a relationship, but through ‘other significant evidence of the durable relationship’. In relation to the EU Settlement Scheme, Home Office guidance gives the example of 'evidence of joint responsibility for a child (a birth certificate or a custody agreement showing they are cohabiting and sharing parental responsibility)’.[7]

In the assessment of a relationship by the Home Office and tribunal, in practice, legal formalities in a relationship are still favoured over durable partnerships in terms of the evidence and duration of a relationship. There are historical assessments for durable and unmarried partners who need to provide two years of evidence of a relationship, or of cohabitation, which constitutes considerable paperwork and record keeping. Whereas, if a couple is married or in a civil partnership, there is only light paperwork needed to prove the valid marriage or civil partnership, even though the couple may have been in a relationship for less than two years.

Similarly, parents of adopted children often face higher documentary and evidentiary burdens when applying for leave or British citizenship for their adopted children, than they would for biological children. There may also be higher evidential requirements depending on the country of adoption, depending on whether a country is party to the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption 1993 or is recognised in UK law.[8]

In numerous other ways the Rules have not evolved in line with current understanding, in particular in relation to children joining or accompanying a lone parent to the UK, with the other parent remaining outside the UK. The Home Office refuses to accept this parenting arrangement, even if there is an amicable agreement between both parents that the child should accompany one parent, whether that be because the parents are divorced and have separate families, or because they choose to live in different countries such as for work or other reasons. It remains the case, even if the parent the child is accompanying or joining has legal custody over the child. Nevertheless, the Rules require the parent wishing to bring their child to show ‘sole responsibility’ for that child, and the burden of proving it rests on them.

In the Upper Tribunal case of TD (Paragraph 297 (i) (e): “sole responsibility”) Yemen [2006] UKAIT 00049, in paragraph 46, the bar for proving sole responsibility was set very high: ‘In order to conclude that the UK-based parent had "sole responsibility" for the child, it would be necessary to show that the parent abroad had abdicated any responsibility for the child and was merely acting at the direction of the UK-based parent and was otherwise totally uninvolved in the child's upbringing.’ The court went on to say, ‘[w]herever the parents are, if both parents are involved in the upbringing of the child, it will be exceptional that one of them will have sole responsibility’.[9]

Accordingly, the sole responsibility test is completely out of step with current best practice, where it is agreed that it is generally best for a child to remain in contact with both parents, if possible. This sole responsibility test may actually result in the parent wishing to remain outside the UK abdicating responsibility, in order for the other parent to bring the child to the UK. It may be that the parent based outside the UK is not eligible to be sponsored under the Rules at all, and has no right to enter the UK, such as if the sponsoring parent has a new partner who is a step-parent to the child. Therefore, if the aim of this rule is ‘to maintain or effect family unity’, rather than that the end product being that ‘parents and child live together in the UK’,[10] it may be that they abandon living in the UK altogether or that an overseas parent ceases any involvement in the child’s upbringing.

The “sole responsibility” rule has not changed since May 1969, when the government ‘took the opportunity provided by the Commonwealth Immigrants Act 1968 to introduce new Immigration Rules’ and designed the sole responsibility rule ‘to prevent Pakistani boys from joining their fathers’.[11] While we have heard from the Home Office that it intends to review this rule, there has yet to be any alteration, and the rule continues to keep families apart.

The only other way to sponsor the child would be to show that there are ‘serious and compelling reasons’ to grant the child leave, or which make exclusion of the child undesirable. This prevents children from joining parents and relatives,[12] except in the most unusual and compassionate circumstances.[13]

The best interests of the child should be the primary consideration, though due consideration should be given to the views of each parent, if they are in conflict. If both parents agree that the child should move or live with one of them, that should be possible. The Rules do not yet reflect this contemporary societal understanding.

However, on the whole, the Immigration Rules are also out of step in focusing on the nuclear family, of children only when they are minors, to the exclusion of other intergenerational ties. Our immigration law is very narrow in scope in terms of “relatives” that can come to the UK, outside a partnership and children under the age of 18. It is more restrictive than European Union law which includes within the concept of a “family member” an individual’s direct descendants who are under the age of 21, and an individual’s dependent direct relatives in the ascending line and those of the individual’s spouse or partner.

In terms of parents, or other adult dependent relatives, such as disabled children who are over the age of 18, the problem does not lie primarily with the definition, but with the requirements. Whilst a parent or grandparent is theoretically covered by definition of relative, in practice most applicants find meeting the requirements of the Adult Dependent Relative route impossible. They must as a result of age, illness or disability require long-term personal care to perform everyday tasks. They must also be unable, even with the practical and financial help of the sponsor, to obtain the required level of care in the country where they are living, because it is not available and there is no person in that country who can reasonably provide it, or it is not affordable. This is discriminatory for those members of the settled British population who may have migrated many years ago to the UK and who cannot sponsor their elderly parents at the time of their parents’ need.

Furthermore, the cut-off age for most routes for dependent children is the age of 18. This results in families with an adult child who is disabled having no route for the child’s entry until the parent meets the requirements of a ‘sponsor’. Under Appendix FM, the sponsor must be an adult who must be a British Citizen in the UK; present and settled in the UK; or in the UK with refugee leave or humanitarian protection; or an EEA national with pre-settled status.[14] Under Appendix Hong Kong British National (Overseas), currently it must be the British National (Overseas), or their partner. Once the parent does meet the requirements, they must still meet the inordinate threshold set for adult dependency, and discharge the significant evidential burden placed on applicants.

Due to recent amendments to the Rules, adult children seeking to join a parent with refugee status and refugee permission or temporary refugee permission, or a parent who is a beneficiary of humanitarian protection in the UK, can now also be granted leave to enter or remain in exceptional circumstances.[15] This flexibility, and the flexibility contained in paragraphs 298 and 298A of the Immigration Rules for adult children to be granted limited leave to remain for a period not exceeding 30 months are examples of better practice within the Immigration Rules for adult children.
There are also systemic issues with the route for a parent of a child who is a British Citizen, settled in the UK, or with pre-settled status. It is only open to parents of a child living in the UK.[16] It provides no avenue for a non-British parent (including one with “sole responsibility”) of a British child to move to the UK, if they are living together as a family outside of the UK. There is also no avenue for a parent to switch into the route from within the UK, with leave as a visitor.[17] It is unclear if this is an unintended consequence of drafting, but it is certainly a lacuna, with the possibility of denying British citizen children of the benefits and advantages of their citizenship, as detailed by Lady Hale in ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4.

Family Reunion

All cases presently handled by our member under the remit of Family Reunion from Europe Project [18] come within Part 8,[19] Part 11, and paragraph GEN.3.2 [20] in Appendix FM to the Immigration Rules. There is no outlined definition of a ‘relative’ for the purpose of any of these routes; though it is noted that there are a number of definitions provided for different family members, which are relatively broad within paragraph 6 of the Immigration Rules. However, as above, they only pertain to applicants under the Ukraine schemes. The extension of Rules to family members remains relatively consistent across the different family reunion pathways with the notable exception that only Part 11 Refugee Family Reunion cases acknowledge the possibility of de facto adoption.[21]
The lack of consistent definitions across the rules for family reunion results in legal uncertainty. For example, paragraph 297 in Part 8 of the Immigration Rules permits a route for a child to join a parent, parents or relative in the UK. Where a child is applying to join a “relative" other than a parent under this route, there is a further legal provision, a child must demonstrate that there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for their care. Relevant guidance further provides as follows:

1.2 Where the sponsor is not a parent

If the sponsor is not a parent but another relative, eg an aunt or grandparent, the factors which are to be considered relate only to the child and the circumstances in which he lives or lived prior to travelling here. These circumstances should be exceptional in comparison with the ordinary circumstances of other children in his home country. It would not, for instance, be sufficient to show he would be better off here by being able to attend a state school. The circumstances relating to the sponsors here (eg. the fact that they are elderly or infirm and need caring for) are not to be taken into account.[22]

Within further route applicable guidance,[23] there is no definition for a ‘relative’. As such, it is necessary to rely on the definitions in paragraph 6.2 of the Rules, which are to be relied upon ‘unless the contrary intention appears’ in the Rules.

In paragraph 319X in Part 8 of the Rules, children may apply to join a relative in the UK with limited leave as a refugee or beneficiary of humanitarian protection. Guidance specific to this route relating to family definitions provides as follows:

The definition of the term “child of a relative” for the purpose of 319X of the Immigration Rules includes the following;

Nieces, nephews, step brothers, step sisters and cousins of refugees and persons with HP resident in the UK. Under 18 years of age.

It does not include step children […]

Rule 319X (iii) is explicit that the relative cannot be the parent of the child that is seeking leave to enter or remain. These will also come under Paragraph 319R of the Immigration Rules.[24]

Part 11 of the Immigration Rules allows for family reunion for partners and children under the age of 18, joining their relatives in the UK with refugee status and humanitarian protection provided the other relevant requirements are met.[25] To apply for such family reunion, the relevant relationship will need to have been established prior to the person with a refugee status and permission or humanitarian protection grant leaving their country of former habitual residence in order to seek asylum. The following definition of partner is given for the purposes of the application:

“Partner” means the applicant’s spouse, civil partner, or a person who has been living together with the applicant in a relationship akin to a marriage or civil partnership for at least two years prior to the date of application.[26]

The relevant family reunion rules were changed to include unmarried or same-sex partners as qualifying family members for the purpose of refugee family reunion. As such, unmarried and same-sex partners are only eligible for family reunion if their sponsor was granted refugee status or humanitarian protection status on or after 9 October 2006.[27]
Adopted children may be eligible provided that the adoption was pre-flight and the sponsor can demonstrate they ‘hold an adoption order and that it was granted either by the administrative authority in the third country, or by a court which has the legal power to decide such applications’.[28] Children conceived pre-flight but born post-flight are also eligible.[29]

Parents and siblings of a child recognised as a refugee are not eligible for family reunion and whilst the guidance addresses the possibility of ‘de facto adopted children’ it states that they too are not eligible for family reunion within the Rules.[30]

Where an applicant does not meet the requirements for refugee family reunion within the Rules, a decision maker must consider, on the basis of the information provided by the applicant, whether exceptional or compassionate circumstances under which the application should be granted.

There are no provisions allowing children recognised as refugees in the UK to bring their parents to join them.

It is noteworthy that recent policy changes have meant that for asylum claims made after 28 June 2022, ‘Group 2’ refugees under section 12(1) of the Nationality and Borders Act 2022 who have ‘temporary refugee permission to stay’, and persons who are granted humanitarian protection, have no right to family reunion unless it would be a breach of the United Kingdom’s international obligations under Article 8 of the European Convention on Human Rights. They must prove there are insurmountable obstacles to family life continuing elsewhere, and when a child is involved, the Secretary of State must be ‘satisfied that family reunion in the UK is in the child’s best interests’.[31]
A member who is a dedicated caseworker of the Family Reunion from Europe Project has noted that the majority of applications so far under the Family Reunion from Europe Project have fallen outside of the Immigration Rules, indicating that they are not fit for purpose. The nuclear family unit is prioritised above all others and there is a significant lack of formal recognition of extended family members (such as sibling relationships). This can have real world consequences for applicants and is not indicative of the family circumstances in which many of their clients find themselves.
They have encountered a number of circumstances wherein a client either has no parents or has not had contact with their parents for many years. Often another relative, an aunt, uncle, or adult sibling has assumed responsibility for the relevant child and has done so for many years. To not recognise these arrangements within the legal framework appears to be a significant oversight and is not reflective of the lived experience of applicants, particularly of children with turbulent family relationships fleeing countries in which they face persecution.
Practically speaking, the lack of guidance regarding extended family members can lead to significant caseworking issues and advising clients as to their eligibility for leave and prospects of success. Further guidance as to the routes available to extended family members is desperately needed to adequately reflect family reunion with extended family members.

Question 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 will be clear from our answer to the preceding question, there is wide discrepancy and differential treatment of families in immigration law. Every family is not treated the same. The Rules distinguish between families and individuals depending on the ‘route’ to which they apply, or find themselves granted leave. The differences are partly for historic and moral reasons (such as Appendix Hong Kong British National (Overseas)), partly political, such as a desire to create certain new requirements (such as the minimum income requirement discussed in our response to Question 3 below), the UK’s exit from the European Union, and geopolitical circumstances (such as Appendix Ukraine Scheme), and perhaps, partly unintended consequences of drafting and complexity of the framework.
However, different rules do apply to families in similar circumstances. One need only compare the bespoke schemes for Afghanistan with those for Ukraine to see the discrepancy. Appendix Ukraine Scheme has generous and wide-ranging definitions for family members that incorporates intergenerational ties, which are welcome, but the schemes for Afghans - the Afghan Citizens Resettlement Scheme (‘ACRS’)[32] and Afghan Relocations and Assistance Policy (‘ARAP’)[33] - set out much narrower definitions. There has been no ‘Homes for Afghanistan’ Scheme, and no ‘Afghan Family Scheme’, in the year that has followed Operation Pitting.
The present bespoke Afghan schemes are replete with problems, from a reported backlog of tens of thousands of applications in June 2022,[34] to the stringent and narrow ARAP eligibility requirements, caps on places for the ACRS, and slow opening of the ACRS pathways. In August 2022, ILPA published a joint ‘Parliamentary Briefing on Afghanistan’ with several other organisations working on these issues and covered the problems with this set of bespoke routes in depth.[35] There is no grant of refugee status for the first and third pathways of the Afghan Citizens Resettlement Scheme, and thus no access to the Part 11 family reunion rules for those who are not referred by the United Nations High Commissioner for Refugees and granted under the second pathway.[36] Thus, even within a single “Scheme”, with families in similar circumstances within a country, there is differentiation.
The three schemes within ‘Appendix Ukraine Scheme’ - the Ukraine Family Scheme, Homes for Ukraine Scheme, and Ukraine Extension Scheme - were also bespoke responses to public outrage following insufficient action, and there were several rounds of piecemeal updates and policy changes to the initial narrow scope of the bespoke routes.[37] Similarly, incoming amendments to Appendix Hong Kong British National (Overseas) for adult children to apply separately to their British National (Overseas) parents, form a concession [38] following a proposed amendment tabled to the then Nationality and Borders Bill.
For Hong Kong BN(O)s and their family, from the outset, the Government referred to the ‘unique and unprecedented circumstances in Hong Kong and the UK’s historic and moral commitment to BN(O) citizens’.[39] In Afghanistan, similarly, one would expect the United Kingdom to have a historic and moral commitment, given that the ARAP scheme is predominantly for those who worked for and with the UK Government, and whose life or safety is now at risk.
Nevertheless, on the whole, the bespoke schemes are often more generous than the “mainstream” immigration pathways, with Appendix Ukraine Scheme the most generous in terms of the width of family encompassed, but without a route to settlement or a route beyond three years of leave. Appendix Hong Kong British National (Overseas), which presents a five year route to settlement, is more generous in defining family than the Afghan schemes, but with less in-built discretion than the Afghan schemes for other family members, and more restrictive definitions than under Appendix Ukraine Scheme. The Afghan schemes confer indefinite leave to enter or remain, but contain restrictive family definitions with a discretion in exceptional or compelling circumstances to include additional family members.
While the Home Secretary’s discretion to grant applications outside of the Rules is necessary, in permitting stringent requirements to be waived, neither overarching discretion to waive rules nor building bespoke schemes is a systemic solution. There cannot be a new Appendix to the Immigration Rules, for every new global crisis. Nor can the discretion relied upon be so wide that there is no legal certainty, and an inability for applicants to plan their lives. The fundamental problem, which both these solutions attempt to circumvent, is the rigidity and stringency of immigration law and policy. The system is insufficiently flexible to adapt and respond to unprecedented historical situations and crises, whether COVID-19 [40] or humanitarian crises.[41] In such a crisis, when asked which family members Ukrainians are expected to leave behind, the conception of a nuclear family was proven to be inappropriate.
The basic conception of what constitutes “family” across the Rules must be sufficiently wide and flexible, so that an overhaul and design of new schemes overnight is not needed in crises. Rather, a flexible set of Rules is needed for all family members that provides sufficient and clear discretion within (not outwith) the Rules for the Home Secretary to consider applications in circumstances not envisaged at the time of drafting and/or permit her to disapply Rules, evidential requirements, and application procedures or processes, where necessary. Wide human rights provisions such as GEN.3.2. within Appendix FM to the Rules have been helpful for family life applications, and consideration should be given to how similar provisions can be built into the Rules where necessary.
There is a notable levelling down through the EU Settlement Scheme, such that future EU nationals are treated similarly to others under UK immigration law. Therefore, rather than any further levelling down, we would recommend that consideration is given to levelling up, such as to definitions of family akin to those in the Appendix Ukraine Scheme.
One difference that begins with the Rules is the division between visa and non-visa nationals, created in Appendix Visitor: Visa national list. The division disproportionately and subjectively requires visa nationals to meet higher thresholds. The list makes it appear as if some nationals are favoured and others are subject to greater scrutiny, not just on long term immigration routes, but commencing with visit applications. This was the case with Ukrainians and Afghans, who, respectively, were [42] and are required to apply at a visa application centre outside of the UK and enrol their biometrics, rather than travelling straight to the border and being granted leave as a visitor or outside of the Rules. With the advent of proposed electronic travel authorisation for non-visa nationals, akin to the US ESTA, this perception may be alleviated, but the fact remains that not all nationalities are deemed the same and hence differential treatment is built into the Rules. This nationality-based distinction often extends to processing times, documents requested, types of premium services and appointments available at application centres, and security checks (which may be warranted).
For the purposes of family reunion and entry clearance, cases can be entirely dependent on immigration status of the family members in the UK. For example, two child applicants could be destitute and facing similar issues in their country of application but, if one were applying to join a British relative and the other to join a refugee relative, they would face completely different application processes and waiting times. If, for example, an applicant is looking to join a British relative in the UK, they will need to meet the far more strenuous requirements of paragraph 297 of the Rules and pay an application fee of £1,538. In contrast, an applicant joining refugee relatives, where the relationship is within the Rules and pre-flight, has an application free of charge and faces a wait of up to 12 weeks for resolution of their case.
A further significant change post-Brexit has been that 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 latter will have a significantly harder time of applying.
As above, there is differentiation based on the family configuration. For example, single parents who must meet the sole responsibility requirement jump through greater hurdles than families which consist of two parents applying as a family unit. There are also higher evidential burdens for divorced parents than there are for single parents by choice or for bereaved parents.

Question 3:

Does the financial requirement for spouses and partners (also known as “minimum income requirement”) achieve its objectives?

We understand that the objectives of the minimum income requirement were to ‘stop migrants becoming a burden on the taxpayer’ as part of the Government's wider strategy to reduce net migration.[43]
The Home Office’s Statement of Intent published on 11 June 2012,[44] ahead of the changes to the Immigration Rules on 9 July 2012, confirmed the introduction of a minimum income requirement for spouse, partner and dependent children applications.
The Statement confirmed the objectives of this policy were to ensure that migrants were not a burden on the taxpayer and to support their participation and integration in British society:

76. The new requirement reflects the level of income at which a couple, taking account of the number of children they have, generally cease to be able to access income-related benefits. A person sponsoring the settlement of a partner… should have the financial wherewithal to ensure that the couple are not a burden on the taxpayer and have enough to live on to be able to support the migrant partner’s participation and integration in British society.[45]

The objective to only allow sufficiently financially viable applicants to be granted visas as spouses and partners does appear to have been achieved. However, the complexity and rigidity of the evidence required to show that the minimum income requirement is met also makes it difficult to demonstrate that applicants do have the financial resources not to be a burden on the taxpayer. This is particularly the case for those relying on income from self-employment and as company directors, or as employees of a company where a relative is a director.
We are not aware of any evidence produced by the Home Office to demonstrate that the minimum income requirement has in any way assisted participation or integration. In our members’ experience, the minimum income requirement has in fact acted in the opposite way, causing families to be separated if they cannot meet the requirement at the initial entry stage, then pushing applicants into a ten-year route to settlement if they are unable to meet the financial requirement at any stage of their application process. This can result in it taking twice as long for them to gain settlement in the UK and having to pay far more in fees to apply for additional extensions of stay. This cannot be said to support participation or integration in British society.

How could the requirement, and the process of demonstrating it is met, achieve them better?

To highlight better practice of the Home Office, our members do report a greater willingness on the part of the Home Office than previously to contact applicants if documents are missing or if they require clarification, rather than simply refusing applications.
The Immigration Rules and guidance create a complex legal framework, in relation to which applicants often require specialist legal advice and representation. This is not readily available free of charge for most applicants, and to access legal aid for many family migration cases in England and Wales a complex Exceptional Case Funding application must be made to the Legal Aid Agency. Therefore, those who cannot afford legal representation may be without it.
Application forms can be long and complicated to complete, and more importantly, they may fail to cater for the individual’s circumstances or to permit sufficient free text areas in the form for applicants to explain those circumstances. A legal representative may be able to assist with explaining the circumstances in a cover letter, but an applicant may not know how to do this or that they should.
Accordingly, a more generous attitude towards small mistakes in applications would be welcome, including a clear mechanism for permitting correction of them at no extra cost so that applicants are not required to go through the appeal process to prove the financial requirement is met, or to submit a new application and pay a new application fee.
Nevertheless, the Rules could be more flexible about the range of resources that can be taken into account and the evidence required, and expand the approach taken in paragraph 21A of Appendix FM-SE, for all family applications. This would permit the Home Office to take into account the sources of income, financial support or funds from:

(a) a credible guarantee of sustainable financial support to the applicant or their partner from a third party;

(b) credible prospective earnings from the sustainable employment or self-employment of the applicant or their partner; or

(c) any other credible and reliable source of income or funds for the applicant or their partner, which is available to them at the date of application or which will become available to them during the period of limited leave applied for.

Self-employed and Company Directors

ILPA is particularly concerned about the evidential requirements faced by applicants and/or sponsors who are self-employed, company directors, or employed by a company of which a relative is a company director.
The areas of particular concern are:

the need to provide documents for the “last full financial year”;
the bar on combining cash savings with self-employment income, or with income from employment as a director or employee of a specified limited company in the UK, which is allowed for those relying on income from employment or non-employment sources; and
the onerous evidential requirements for those employed by a company of which a relative is a company director.

The need to provide documents for the “last full financial year” means the most recent tax year for self-employed persons and the most recent company financial year for company directors. The only flexibility conferred is that self-employed applicants whose income in the “last full financial year” itself is insufficient can choose to rely on the last two financial years and calculate their average income over a two year period instead.
The lack of flexibility in the period that income needs to be shown can result in applicants - whose permission to stay requires renewing soon after the end of the relevant financial period - being unable to produce the specified evidence and so being refused, even though the income clearly exceeds the minimum income requirement.
This is contrary to the stated objective of the Immigration Rules that applicants should have the financial wherewithal to ensure that they are not a burden on the taxpayer. In addition, it is not aligned to HMRC requirements for the filing of tax returns. A Self Assessment Tax Return needs to be submitted by those who are self-employed by 31 January after the end of the tax year ending 5 April to which it relates. A Company Tax Return (CT600) usually needs to be filed 12 months after the end of the financial year.

Example

An applicant (A) applies for leave to remain in the UK as a spouse, following their marriage here to a British national. The application is made on 1 July 2019. The financial requirement is met from the sponsor’s (S) income as a company director. The company financial year runs from 1 January to 31 December each year. The “last full financial year” is the year ending on 31 December 2018. In accordance with Paragraph 9 of Appendix FM-SE they must provide specified evidence including audited or unaudited accounts and Company Tax Return CT600 for the financial year. They use the Super Priority service and receive a decision granting permission to stay on 15 July 2019 for a period of 30 months expiring on 15 January 2022.

When A comes to apply for an extension of stay for a second 30 month period in the five-year route to settlement, again on the basis of meeting the financial requirement from the sponsor’s (S) income as a company director, the “last full financial year” is that ending on 31 December 2021, so only just ended. This presents the company with the almost impossible task of trying to draw up accounts and file a CT600 in 15 days and is completely at odds with the accounting practice and the filing requirements placed on them by HMRC.

The second issue is the requirement to show earnings over the “last full financial year” i.e. for a 12 month period rather than the usual 6 month period required under the Immigration Rules for those employed other than as a company director or by a ‘specified type of limited company’.
Members have highlighted that many limited companies operate their financial years in accordance with the tax year. A member has provided the following example of how the rules preclude certain income from employment in a ‘specified limited company’ from being relied upon:

A specified limited company whose accounting period finishes at the end of March would have until 31 December to file their Company Tax Return CT600. Therefore, the CT600 for the accounting period from 1 April 2021 to 31 March 2022 would need to be filed by 31 December 2022. An employee who started their employment on 1 April 2021 would complete 6 months employment by 30 September 2021. However, he would be precluded from relying on this income unless he could produce the Company Tax Return relating to the same period. Obviously, the Company Tax Return for the accounting period from 1 April 2021 to 31 March 2022 could only be submitted after 1 April 2022 but ordinarily companies need several months to finalise their accounts which is recognised by HMRC hence the minimum time given for filing of the company tax return to a company with a company tax year to 31 March is 31 December of that year. Therefore, an employee who commenced their employment on 1 April 2021 would potentially have to be employed by the same employer for over 20 months to the end of December 2022 before that income could possibly be taken into account.

The bar on combining cash savings with income from earnings as self-employed or income from employment as a company director is anomalous. Those relying on income from employment or non-employment sources can do this to top up any shortfall in income. There appears to be no rational justification for not allowing those who are self-employed or company directors to do so too. The reliability of their funds can be assessed by them being required to provide the same evidence as other applicants who rely on cash savings.

Example

In the first scenario above when A comes to apply for an extension of stay for a second 30 month period in the five-year route to settlement, there is a shortfall in income as S’s gross profit as a company director in the “last full financial year” is £16,000 less than the minimum income requirement of £18,600. S has cash savings of £56,000 following the sale of a house. However she cannot rely on these, simply because she is a company director. If S was employed other than as a company director or in receipt of non-employment income such as a pension, she could combine her income with the cash savings.

The third concern is the onerous evidential requirements for those employed by a company of which a relative is a company must provide, described as a ’specified type of limited company’.
A ‘specified type of limited company’ is defined in paragraph 9(a) of Appendix FM-SE as one in which:

(i) the person is either a director or employee of the company, or both, or of another company within the same group; and

(ii) shares are held (directly or indirectly) by the person, their partner or the following family members of the person or their partner: parent, grandparent, child, stepchild, grandchild, brother, sister, uncle, aunt, nephew, niece or first cousin; and

(iii) any remaining shares are held (directly or indirectly) by fewer than five other persons.

This definition is very widely drawn and covers not just people who are in control of the company i.e. directors, secretaries and or shareholders but also someone who is merely an employee but who happens to be related to a shareholder. Essentially, an individual can be an ordinary employee, who is not a company director, have no shares in the business, but still be required to provide sensitive company information including the Company Tax Return, accounts and corporate bank statements even though the employee has no other financial interest in the company.
The relationships include not only a partner of the employee, who could be expected to have a joint financial interest, but immediate, extended and cross-generational family members, even first cousins. It seems truly bizarre that a mere employee and someone who has no financial interest in the business is expected to provide confidential company documentation which they would have no right to acquire or access.
There is also inconsistency with the evidence that employees of other business models which are also family concerns need to produce. There is no requirement for an employee who is a relative of a sole trader, partnership or limited liability partnership to provide the onerous level of documentation that the employee of a specified limited company is required to provide in these circumstances.
Our member has raised concern that this provision is discriminatory:

“Many sponsors of spouses from overseas, especially those from the sub-continent are likely to be employed in family businesses and this provision has deeply discriminatory effects against them. It appears that the true effect and impact of this provision has not been considered despite it having been brought to the attention of the then Home Secretary. Overall, there does not appear to be any policy justification for treating employees of a specified limited company differently from other employees. As mentioned above, if the same family member was employed in the same family business which operated as sole trader or as a partnership they would not be expected to provide any additional financial documentation except for 6 months payslips, 6 months personal bank statements and a letter from their employer confirming the employment.”

How could it be adapted to reflect changes in the economy and the labour market?

The Immigration Rules could allow greater flexibility on the evidence to be provided to enable easier switching between employed roles and also between employment and self-employment by applicants and sponsors. We would refer you to the example provided above by our member regarding the extended length of time that a person may need to be employed as a company director to be able to rely on their income for an application, and to the similar position of self-employed applicants who need to wait until the end of the tax year to be able to rely on any income from self-employment to meet the minimum income requirement.
This lack of flexibility means that applicants and sponsors are discouraged from moving jobs or setting up businesses in order to be able to meet the strict requirements of the Immigration Rules. This is contrary to the stated objective of the Immigration Rules to support the migrant partner’s participation and integration in British society, and instead constrains effective participation in the economy and labour market.
Greater flexibility could also better meet the changing needs of the economy and labour market: changes of employment could meet skilled labour shortages and setting up in business could facilitate job and wealth creation.

Are there any unintended consequences for individuals and families?

The particularly harsh consequences of the minimum income requirement on certain categories of individuals and their families was raised in the case of R (on the application of MM (Lebanon)) v Secretary of State for the Home Department [2017] UKSC 10.
The Supreme Court upheld the minimum income requirement but declared that ‘the rules fail unlawfully to give effect to the duty of the Secretary of State in respect of the welfare of children under section 55 of the 2009 Act’,[46] and recognised that the minimum income requirement ‘has caused, and will continue to cause, significant hardship to many thousands of couples who have good reasons for wanting to make their lives together in this country, and to their children’[47] and that there were ‘several types of family’ upon whom it ‘will have a particularly harsh effect’.[48] As a result the Home Office amended their policy to enable them to consider applications on the basis of Article 8 of the European Convention on Human Rights where only some or none of the requirements, including the minimum income requirement, are met and also to consider alternative possible sources of financial support. However, they will only do so if exceptional circumstances can be shown and that it results in unjustifiably harsh consequences for the applicant, their partner, a relevant child or another family member whose Article 8 rights would also be affected.
From our members’ experience, the exceptional circumstance test is a difficult one to meet, even with the benefit of legal assistance.
As detailed below in response to Question 7, the financial requirements directly contribute to family separation, including for prolonged or indefinite periods of time; please see our comments below.
It is submitted that the family financial requirements must be substantially reformed, introducing greater flexibility to better account for the range of applicant families’ realities and possibilities, while also giving greater weight to the effective realisation of applicant families’ rights to a family and private life. We have made a concrete recommendation above in relation to the extension of the approach taken in paragraph 21A of Appendix FM-SE, for all family applications.

How family migration policies affect society

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

Whilst local authorities themselves may be best placed to answer this question, we would like to draw attention to an aspect of family migration policy that has particular implications for local authorities, namely the imposition of the No Recourse to Public Funds (‘NRPF’) condition on families. In doing so, we also seek to highlight some of the negative ramifications of NRPF policy and its harmful impacts on families.
Section 3(1)(c)(ii) of the Immigration Act 1971 provides that if a person is given limited leave to enter or remain in the United Kingdom, it may be given subject to a condition requiring the person to maintain and accommodate themselves, and any dependants, without recourse to public funds. A person who has leave to enter or remain in the United Kingdom subject to a condition of NRPF is considered “[a] person subject to immigration control” under section 115(9) of the Immigration and Asylum Act 1999, and section 115 makes provision for such a person to be excluded from entitlement to a wide range of benefits, including, as the High Court has observed, benefits ‘intended to ensure the basic welfare of dependent children’.[49] The effect of these provisions, together with paragraph 6.2 of the Immigration Rules which sets out a definition of the meaning of ‘Public funds’, is that those subject to an NRPF condition are excluded from most welfare benefits.
Section 3(2) of the 1971 Act requires the Secretary of State to lay before Parliament statements of the rules as to the practice to be followed for regulating the entry into and stay in the UK of persons required to have leave to enter, including any rules as to the conditions to be attached in different circumstances. The Secretary of State’s policy and practice on the imposition of the NRPF condition can therefore be found in the Immigration Rules, as well as in the ‘instructions (not inconsistent with the immigration rules)’ which may be given to immigration officers by the Secretary of State’ under paragraph 1(3) of Schedule 2 to the 1971 Act.
The introduction of Appendix FM Family Members to the Immigration Rules in 2012,[50] which contained provisions for imposing an NRPF condition on leave granted on the basis of family life, heralded a policy which has been subject to a series of successful legal challenges.[51]
Whilst persons subject to an NRPF condition are excluded from eligibility for most welfare benefits, some may be entitled to support from local authorities, which have statutory duties to provide services for children in need and their families.[52] For example, section 17 of the Children Act 1989 requires local authorities ‘to safeguard and promote the welfare of children within their area who are in need’ and ‘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’, which ‘may include providing accommodation and giving assistance in kind or in cash’. Such services ‘may be provided for the family of a particular child in need or for any member of his family, if it is provided with a view to safeguarding or promoting the child’s welfare’.[53] As a result, local authorities have responsibilities to provide a safety net of assistance for destitute families with NRPF who have a child.
The NRPF Connect data report for the financial year 2020-2021 recorded that ‘3200 households with no recourse to public funds were provided with accommodation and financial support by 68 councils at a collective annual cost of £57 million’, including ‘1636 families, with 2932 dependants, supported by 67 councils at an annual cost of £26.8 million’.[54] The report specified that ‘[o]f the families requesting support, 30% had no current immigration permission and 21% had a form of leave to remain that was subject to the “No Recourse to Public Funds” (NRPF) condition.’[55] It was reported that ‘[o]f the 1156 family households that had their support withdrawn and case closed: • 79% exited support following a grant of leave to remain or a change in immigration status that allows access to public funds’.[56]
The current system has considerable shortcomings both for local authorities and families. A 2019 report emphasised that ‘reliance on section 17 places an additional and significant financial pressure on local government at a time when Children’s Services are subject to a severe funding shortfall’.[57] A 2019 report by Project 17 found that ‘[h]ousing is a key issue for children living in families with NRPF. Many children supported under section 17 are living in poor conditions, without enough space or privacy, often far away from their schools, friends, and support networks.’[58] Research examining Local Authority responses to people with NRPF during the pandemic highlighted that ‘[p]rior to the pandemic, a number of concerns had been raised about support provided under Section 17, including inappropriate gatekeeping by local authorities (Price & Spencer, 2015; Dexter, et.al., 2016), poor standards of housing (Threipland, 2015), and inadequate levels of support (Jolly, 2019)’, and noted that ‘[t]hese issues are likely to have been exacerbated by the pandemic’.[59] A report published in March 2022 by the Centre for Analysis of Social Exclusion at the London School of Economics observed in relation to section 17 support that:

Despite this assistance being available, there is evidence that some families may not seek help from local authorities when they are suffering from deprivation as they fear that their children will be taken into local authority care following a Children Act assessment. Parents are also often unaware of their legal rights and are unable to advocate for themselves effectively in such distressing circumstances, where the power imbalance is overwhelming. Parents’ fears may be justified in some cases; there are reports of local authorities using such threats as a way of ‘gatekeeping’, although equally there is much misinformation and confusion around entitlements. Other studies have highlighted ‘gatekeeping’ practices by local authorities which can lead to a breakdown in trust between families and statutory agencies.[60]

Given the problems and harms arising from the current system, it is especially pertinent to consider the findings of a report published in March 2022 by the London School of Economics, which aimed ‘to provide a robust Social Cost Benefit Analysis (SCBA) of the removal of the No Recourse to Public Funds (NRPF) condition from some migrant households’.[61] The report estimated that ‘local authorities currently spend over £60 million annually supporting those with the NRPF condition’[62] and modelled two options for policy change focusing on ‘holders of Tier 1, 2 or 5 visas who come to the UK to work and their dependents; those who are in the UK because of family links; dependants or others who are linked to the primary visa holder; and those estimated to come via the Hong Kong British National Overseas scheme’[63]:

Option 1 (family households) is that access to public funds, applying the normal means tests and other conditions of eligibility, should be permitted to those with visas or Leave to Remain in the groups under consideration, and where the household includes a child or children under the age of 18 (either UK or foreignborn). The option could be extended to include households with individuals who suffer specific types of long-term disability or have experience of domestic abuse.

Option 2 (all households in the group) is to extend recourse to public funds, applying the normal means tests and other conditions of eligibility, to all households in the groups under consideration.[64]

The report concluded that ‘removing the NRPF condition—either for families with children (Option 1) or all households (Option 2) --would produce gains in excess of the costs, both in the short term and over a ten-year period. Gains are seen most in relation to the benefits of access to better housing, and in benefits for children.’[65] It found that ‘[l]ifting NRPF conditions for those with limited leave to remain would result in a positive net present value of £428 million over a 10-year period (Option 2) while lifting NRPF conditions for families with children and other vulnerable individuals would result in an overall net present value of £872 million analysed over a 10-year period (Option 1).’[66] The report noted that the impact of either option would be ‘to move expenditure from local to central government’ and estimated that ‘[l]ocal authorities see savings over ten years of £407 million (Option 1) or £405 million (Option 2), principally from avoiding expenditure on helping people who become destitute.’[67]
Given these significant findings and the considerable harms associated with the imposition of the NRPF condition on certain groups of people with limited leave,[68] we recommend that the policy on the imposition of NRPF be urgently reviewed, and consideration be given to removing the condition altogether, particularly in relation to families with children, taking into account recommendations from relevant stakeholders.[69]

How migration policies affect families

Question 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?

Family immigration law and practice frequently cause periods of family separation. We have highlighted three main issues below, namely procedure, fees and certain provisions of the law itself.

Procedural issues

Currently, delays are causing families a huge amount of distress. Ordinarily, waiting times for out of country applications by family members of British citizens and settled people are significantly longer than for work-related main applicants and dependants.[70] For example, last year the service standard was 12 weeks from the date of an appointment for a standard, non-priority entry clearance application by a partner under Appendix FM.[71] In contrast, the service standard was three weeks for the dependant of a sponsored worker. The 12-week waiting time put significant pressure on families to pay for the priority service, with a cost of £573 per person,[72] for a decision on the application within six weeks of the biometrics appointment.
In March 2022, the priority service was suspended for new study, work and family visa applications as UKVI prioritised Ukraine Family Scheme applications following Russia’s invasion of Ukraine.[73] On 11 May 2022, the Home Office extended the standard service to 24 weeks from the date of the biometrics appointment for those applying to join family in the UK.[74] On 12 August 2022, UKVI confirmed the resumption of priority services for new study and work visa applications, but priority services remain suspended for family applications.[75]
The delay is causing children to be separated from their parents and couples to be parted for long periods. Most families plan ahead for a move back to the UK, but very few start to plan straight-forward visa applications more than six months before a proposed moving date. In many cases the British/settled partner has been required to move to the UK to start a job in advance of the rest of the family; employers are not willing to postpone start dates by three to six months. Therefore, many families are now being separated for long periods while applications are outstanding.
The long waiting times for family applications can also put children at risk. In some cases, children apply to join a parent or family member in the UK, as the family member (often a grandparent) with whom they were living is no longer able to care for them. This means that some children find themselves staying temporarily with more distant relatives or family friends who may not be willing to care for them for a full six month period while an application remains outstanding.
A reduction in the standard waiting times for family entry clearance applications would improve the situation greatly. Priority services for family applications should also be restored as a matter of urgency.
The in-country service standards also cause problems. Standard service applications by partners on the five year route to settlement are generally decided within eight weeks of the biometrics appointment.[76] However, for those applying under a ten year route to settlement (or five year parent route to settlement), there are no standard processing times for applications submitted as a partner, parent, or on the basis of private life, and the average wait time for a decision is currently 11 months.[77]
At present, under paragraph 34K of the Immigration Rules, an application is automatically withdrawn if the applicant travels outside the common travel area before it is decided.[78] “Section 3C leave”, which arises automatically under section 3C of the Immigration Act 1971 to extend leave where a person has made a valid in-time application which is not decided before the person’s leave expires, also lapses where an applicant leaves the UK.[79] This causes stress for many families. For example, as applicants cannot travel while an application is outstanding, children who are lawfully present and applying to extend their leave are unable to take part in educational trips overseas. Families are also put in an extremely difficult position when a family member overseas falls ill.
Whilst we acknowledge that Home Office operations are currently under significant pressure, in part because of the humanitarian crisis in Ukraine, we would advocate for the waiting times for standard in-country parent applications and 10-year route family applications to be significantly reduced.
The in-country problem could, however, be resolved if people were able to travel while their applications were outstanding. This would require amendment of the Immigration Rules and legislation, including section 3C of the Immigration Act 1971.
The issues relating to waiting times are also found in the appeal process. Both in-country and entry clearance appeals can remain outstanding for approximately one year.[80] In the latter case, applicants generally remain separated from families during this time. Under section 92(8)of the Nationality, Immigration and Asylum Act 2002, ‘Where an appellant brings an appeal from within the United Kingdom but leaves the United Kingdom before the appeal is finally determined, the appeal is to be treated as abandoned unless the claim to which the appeal relates has been certified under section 94(7) or section 94B’. Leave extended by virtue of section 3C of the Immigration Act 1971 will also lapse.

Fees

The level of fees can also cause families to be separated. For example, the fees [81] for an entry clearance application by the spouse and stepchild of a British citizen under Appendix FM are:

· Partner application fee £1,538

· Adult immigration health surcharge £1,560

· Child application fee £1,538

· Child immigration health surcharge £1,175

Total £5,811

Similar fees apply in-country, with a lower application fee of £1,048.[82]
The level of fees puts enormous pressure on families. For example, a member has explained the issues faced by a client who was recognised as a refugee in the UK and is not settled, and who receives Personal Independence Payment. He managed to re-establish contact with the woman he had planned to marry before he had to flee his country, and they married. She lived with her sister and her two children, and they decided that she should come to the UK first, and then the children apply to join them later. They were unable to pay the immigration fees and the immigration health surcharge even for one applicant, so spent two years saving. However, then the wife’s sister died and there was no one else to care for the children. The wife and children have all had to remain overseas.
It is only recently that the Home Office has introduced fee waivers for entry clearance applications.[83] However, for both in-country and entry clearance applications it is a complicated process.
An additional issue with fees is that once in the UK, families need to pay the fees every two and a half years. For families on the 10-year route to settlement, this is a particular burden.
One immediate change that would assist would be to re-introduce lower fees for dependants. This would be justified given that in many cases a child’s application turns wholly on their parent’s application and there must be little more for a caseworker to do than check a birth certificate.

The law

Family immigration law itself frequently causes families to be separated. We have highlighted several key issues.
First, the financial requirements (see our response to Question 3 above) directly contribute to family separation. Where families are returning to the UK from abroad, the British/settled sponsor generally needs to have been earning £18,600 (or more if there are applicant children) overseas and have a confirmed offer of employment on return to the UK which meets the minimum income requirement.
It is often difficult for a sponsoring family member, who may have lived for a substantial period of time abroad, to obtain a UK job offer while overseas. Many also do not earn more than £18,600 in the country where they have been living due to standard income levels in other countries. In such circumstances, it is not uncommon for the British/settled sponsor having to return to the UK to find a job meeting the minimum income requirement. Usually, it is only after they have been employed here for at least six months that their family member(s) can apply. Once you add entry clearance waiting times (see above), some families face a year of separation.
We have also discussed the issues that many families have in proving income from specified sources. This also leads to families being separated, potentially indefinitely.
Second, family immigration law causes family separation due to the limited categories of family members who are eligible to apply under the Rules. As discussed above, there is no definition of “family” under the immigration rules. The rules in Appendix FM make provision for partners (spouses, unmarried partners and fiancé(e)s) and children. There is also a very narrow adult dependent relative category which only allows a small number of people to enter each year.
An additional issue is that there is no provision for those with leave as a parent to sponsor a partner or child. A member has highlighted the situation of a woman who had been granted leave as a parent on the ten year parent route as she had a child in the UK. She had expected that she would be able to bring her other three children from overseas to join her and the youngest. However, a person with limited leave as a parent cannot sponsor a partner or child under the rules. They must wait until they have been granted indefinite leave. In this case, all three children living overseas would have turned 18 by the time their mother had been granted settlement.
The lack of provision for a wider group of family members, in particular elderly parents, often causes long-term separation. As above, we would advocate for the immigration rules to make provision for a wider group of family members.
Finally, the sole responsibility rule, as explained above, continues to cause problems for families. This rule can cause a child who has been living with a grandparent or other relative to be refused leave to join a parent on the basis that after several years of living apart, the UK-based parent does not have “sole responsibility” for their child. It appears inconsistent with the best interests of a child to be prevented from joining a parent who wishes to care for them. As noted above, the rule can also prevent a child from moving to the UK with the parent that they normally live with, even where the other parent has given consent.

Question 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?

We have covered most of the legal and procedural reasons in relation to Question 7 above. We note, however, that Article of 7(1) of the Convention on the Rights of the Child provides:

‘The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and as far as possible, the right to know and be cared for by his or her parents.’

Nevertheless, children can be separated for years from their parents under the current Rules.
One of our members has recommended that a reference to the Children Act 1989, in particular section 1(2), which states that ‘[i]n any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child’, should be incorporated into the Home Secretary’s legal obligations to ensure prioritisation of these applications. Section 55 of the Borders, Citizenship and Immigration Act 2009 has not achieved this.
Another member notes that for all applicants under the Family Reunion from Europe Project, there has been a protracted period of separation from their families as their cases progressed. Often UK family members are prevented from visiting their separated family members (either by their own immigration status or the danger present in the place where the separated family member is residing). All applicants under the Project use electronic means of communication to keep in contact (such as WhatsApp and Facebook messenger). Often this internet communication is the only manner in which representatives can keep in contact with their clients directly. Whilst our member states that this online communication is helpful, it does not substitute for face to face communication and it is, of course, affected by the circumstances of the separated family member who may often have no or limited internet access to contact their family.
In SS (India) v The Secretary of State for the Home Department [2010] EWCA Civ 388, at paragraph 50, the Court of Appeal found in relation to the facts in that case:

In my view there has not been a "detailed and anxious consideration" (per Sedley LJ in AB (Jamaica)) of whether it is reasonable and proportionate for either Navdeep or Pardeep, as British citizens who have lived all their lives in the UK, to emigrate to India in order that there be a family life with all the parties physically together in India. By this failure, I think that the AIT erred in law. The AIT concluded somewhat lamely at paragraph 40 that there could be some degree of family life through "modern means of communication" and possible visits to India. But that conclusion sits ill with the earlier finding, in paragraph 38, that Navdeep and Pardeep are extremely close to their father and seek his guidance in all the big decisions in their life.

Question 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?

How migration policies affect families – a focus on best interests

In accordance with section 55 of the Borders, Citizenship and Immigration Act 2009, the Home Office must carry out its functions in a way that takes into account the need to safeguard and promote the welfare of children in the UK. It is ‘intended to achieve the same effect as section 11 of the Children Act 2004’[84] which places a similar duty on local authority, health, youth justice and education services.

Child Rights Impact Assessment (‘CRIA’) and strategic level best interests considerations

In the seminal judgment in ZH Tanzania v Secretary of State for the Home Department [2011] UKSC 4, at paragraph 33, the Supreme Court stated, ‘[i]n making the proportionality assessment under article 8, the best interests of the child must be a primary consideration. This means that they must be considered first.’
In practice, it is not clear that Immigration Rules or asylum/immigration policy are drafted in a way that makes children’s interests a primary consideration; nor are the best interests of any children affected by a decision routinely considered first when any changes to law, policy, or process are made or proposed.
Through respective Children’s Ministers the UK government has repeatedly made a public commitment to give due consideration to the UN Convention on the Rights of the Child (‘UNCRC’) when making new policy or legislation.[85] Despite there being a Child Rights Impact Assessment (CRIA) template and guidance available for government officials to use, to our knowledge the Home Office has never carried out a child rights-focused impact assessment, nor does it consider how new or existing law and policy may impact on children when measured against the UN Committee on the Rights of the Child’s General Comments on the UNCRC, including those focused on the operation of the best interests principle,[86] or those providing guidance on how state parties should respond to the needs, rights and interests of migrant children and young people.[87]
A concrete and stark example of this failure to ensure that children’s best interests are given primary consideration can be seen in the recent amendments to the Immigration Rules made through the introduction of Appendix Private Life to the Immigration Rules. Ostensibly the purpose of this Appendix was to set out the basis on which long resident individuals’ private life rights could be given effect. The majority of the content of Appendix Private Life relates to the applications made by long resident children and young people. Appendix Private Life was intended to replace the provisions of the Immigration Rules previously contained within paragraph 276ADE of the Immigration Rules and to create shorter routes to settlement in recognition of the different circumstances relating to those whose childhood and formative years had been spent in the UK with commensurate levels of integration and investment in their futures.
In principle, these amendments to the Rules appear to provide children and young people with shorter routes to settlement, and to reflect their different circumstances as individuals who arrived in the UK as children, including those born here. Some amendments to the Rules do amount to an improvement in comparison to the previous provisions of paragraph 276ADE. However, the content of the Rules and the processes by which the shorter routes to settlement may be accessed make clear that, in fact, these were not designed from a starting point which makes the best interests of the child a primary consideration.
Appendix Private Life to the Immigration Rules provides that a child born in the UK who lives here continuously for a period of seven years, and who can show that it would not be reasonable to expect him/her to leave the UK, is eligible to be granted settlement on application. On the face of it this appears to be a significant and beneficial departure from the position under paragraph 276ADE(1)(iv) which was the equivalent provision under the Rules in their previous form. It is the process requirements and ancillary validity requirements which illuminate the failure to consider the child’s best interests in drafting the Rules, as they render the application effectively inaccessible to a significant number of long resident children solely on the basis of their financial situation. This is because a validity requirement of the Rules in relation to settlement (paragraph PL 11.2(a)) set out that in order to access settlement, payment of the relevant fee for the application is mandatory. That fee is currently £2,404, a sum far beyond the reach of all of the clients that our member, a community law centre, sees in its client group. It is important to note that children are unlikely to be able to influence their family’s income, as this is not within their control, and that there is no fee waiver process available for settlement.
As a result, on a pragmatic basis our member’s advice to clients is that there is limited point in making applications of this nature for children in their families, even if they are able to meet the other requirements of the Rules. This is because once the child has spent ten years continuously resident in the UK since birth they will acquire an entitlement to register as British under section 1(4) of the British Nationality Act 1981, for which the fee is considerably less at £1,012, and further for which there is a fee waiver process available.
Had the rules been drafted on the basis of a proper assessment of the best interests of long resident British born children, with these as a primary consideration, it is hard to see how it could have been decided that placing access to Indefinite Leave to Remain (‘ILR’) behind a paywall was in the best interests of the children applying, and that such applications should be excluded from any fee waiver process. In such circumstances, having accepted that a child born in the UK who had lived here continuously until their seventh birthday and whom it was not reasonable to expect to leave the UK should be granted ILR, the Home Office, through the use of a systematic Child Rights Impact Assessment (‘CRIA’) process, should have continued to consider the process to give effect to those entitlements through the prism of best interests. As such, it is the process by which such entitlements are accessed which creates the obstacle to the child enjoying his/her rights, and it is clear that the process has not been informed by any consideration of the child’s best interests, but instead has been driven by the expediency of the immigration system absent necessary balancing of the rights involved.

Individual children’s best interests cannot be viewed in isolation

Further difficulties arise where the Immigration Rules attempt to address the circumstances of children in a vacuum instead of on the basis of the reality of their lives as an integral part of their family unit. To give effect to a child’s best interests it is essential to understand their context, and to consider the impact of law and policy upon their wider family group, and the extent to which this then impinges upon the best interests of the child as part of the family.
Failing to consider the rights of a child’s family members may result in an impediment to the child accessing processes that are in their best interests and may even serve to bring the child’s best interests into conflict with those of other family members. The issues in relation to non-waivable fees for ILR are one example of this, where the need to meet essential living needs for other family members will mean that a child cannot access a grant of leave that would be in their best interests. However, there is no basis on which a parent could be criticised for ensuring that all members of the family are fed and accommodated rather than pay immigration fees which would achieve a better form of leave to remain for one family member.
Further issues in relation to the Immigration Rules in Appendix Private Life and their interaction with the Rules in Appendix FM are the complexity of the Rules and processes applicable, the stress and pressure they place on vulnerable members of society, and the need for specialist legal advice to be able to navigate them. In the experience of our member, a community law centre, working with children and young people and their families, the complexity of the Rules and of the systems in place raises a significant risk that children in families in which members have different grants of leave to remain may inadvertently become unlawfully present due to an oversight and failure to renew their leave to remain or apply for ILR in time.
The complexity of the Rules and the processes implementing them is such that specialist legal advice is required to navigate these, and in the absence of these there is a real risk of children or their family members becoming unlawfully present due to their inability to understand their situation. In their practice as a community law centre, our member sees a significant number of vulnerable individuals who have been unable to navigate the system alone, or to understand what action they need to take, and who have been unable to access adequate legal advice. The effect of this is usually to render the family destitute and, regardless of the immigration status of any child in the family, their rights and entitlements in practice are accessed via their parent; if the parent cannot access employment or welfare benefits then it is the children who will suffer. Similarly, if a parent has to divert funds into immigration fees or legal fees, again this is money that cannot be spent for the benefit of the child.
For example, if one considers a hypothetical family unit consisting of:

Alice aged 45, a single mother of three children

Barbara, daughter aged 13 who was born in Ghana and has lived in the UK for nine years

Christopher, son aged nine who was born in the UK and has lived here all his life

David, son aged six who was born in the UK and has lived here all his life

None of the family have current leave to remain. They all live together in the UK as a family unit. Alice is the children’s sole carer and is financially responsible for them.
In this situation, if each family member made the most advantageous application available:

● Alice will be granted leave to remain for 30 months on a ten year route to settlement.

● Barbara will be granted leave to remain for 60 months on a five year route to settlement.

● Christopher may be entitled to a grant of ILR if the full fee is paid, or leave to remain for 60 months if the family cannot afford to pay the mandatory ILR fee. When he reaches the age of ten, Christopher will acquire an entitlement to register as a British citizen under section 1(4) of the British Nationality Act 1981.

● David would be granted leave to remain for 30 months in line with his mother (but may be able to apply for ILR when he turns seven or in his renewal application if the family can afford the fees).

In our view, it is a failure to treat children’s best interests as a primary consideration that has led to circumstances where a small family unit can hold such a complex set of immigration statuses which ultimately, in our member’s experience, risk one or more of the children not maintaining lawful presence. In practice our member sees families where a child such as Christopher, who has, or will imminently acquire an entitlement to register, is left out of the family’s application for leave to remain but then is not in fact registered as a British citizen. Our member anticipates that they will, in future, encounter children and young people who have been in Barbara’s position and who, as a result of having a grant of leave that is not in line with her other family members, may not maintain lawful residence because her renewal date is missed.
In addition, the family’s immigration status is likely to dominate their lives and their financial circumstances given the number and frequency of applications to be made. This is likely to divert Alice’s time, energy and financial resources away from her children and towards maintaining lawful presence.
A system that is designed with the best interests of children as a primary consideration would be unlikely to create such a complex and unwieldy system which is almost impossible for families to navigate. A genuine assessment of a child’s best interests should include an assessment of the processes by which the child’s rights are accessed and ought to consider simplified, streamlined, and consistent rules and processes.
From this perspective it is hard to understand:

why a child born in the UK who lives here for seven years is entitled to apply for ILR, but a child with the same length of residence who was not born in the UK is not;
why a child who is entitled to British citizenship can access a fee waiver process but a child who is entitled to a grant of ILR cannot.

Within the family justice system the best interests of the child are paramount

It is challenging to compare the family justice system with the immigration system for a number of reasons. The principal difficulty is that within the family justice system the best interests of the child are paramount, and the purpose of the system is to protect and give effect to the child’s best interests as set out in the welfare checklist in section 1 of the Children Act 1989.
However, there is still no shared understanding of ‘a child’s best interests’ across central government, local government or the public bodies that provide a service to/for children and young people. In 2016, witnesses to a House of Lords Committee pointed out: ‘there is too little standardisation of what [the principle] means in practice’,[88] with the Committee concluding that ‘there is evidence to suggest that . . . [the best interests principle] is not respected and is regarded as an impediment to the effective operation of immigration controls.’[89] That situation has not changed: UK migration policy is that, within the immigration system, the child’s best interests are to be balanced against the public interest. As such, in relation to the family justice and immigration systems, we are not comparing like with like.
The family justice system makes clear that its intended starting point in relation to any decision or proceedings is the best interests of any child or children affected by those proceedings. This is in contrast to the current family migration system which treats children’s best interests as an afterthought rather than a primary consideration.
In family proceedings, the rights or responsibilities of any adults are viewed solely or predominantly through the lens of what is in the best interests of the child, such that decisions about contact or residence are considered in terms of what promotes the child’s welfare and safety, rather than what adults in the child’s life want or need.
In the family migration system, despite the fact that applications made by parents on the basis of Appendix FM will often be entirely predicated on the circumstances of their child or children, there is no effective mechanism to capture the voice, or the needs of those children. An application for a family may be based on the private life rights of the children in the family, but in practice the main applicant will always be the parent. The online application system only provides opportunities for a parent to set out the needs of their child or children in their opinion, and – despite Home Office statutory guidance that children’s views should be listened to, and their wishes and feelings obtained and taken into account when immigration decisions are to be made [90] – there is no mechanism by which a child can put forward his/her own views, nor is there any requirement for an independent assessment of what may be in the best interests of a child as there is in the family jurisdiction. There is also no clear mechanism or process for balancing the best interests of a child against the public interest on a case by case or systematic basis.
Further, within the family justice system, those making decisions and/or assessing children’s needs will be specialists in that area and/or will be required to obtain the opinion of such a specialist. Conversely, in the immigration system decision-makers are not child welfare specialists and there is no requirement for the opinion or advice of such a specialist to inform decision-making.
We understand from our member that Home Office caseworkers and decision-makers who work on children’s asylum cases are provided with training on the section 55 duty and how they should take account of and consider children’s best interests. We also understand from our member that within the Home Office, internal advice is available from the Safeguarding Advice and Children’s Champion (‘SACC’) (formerly the Office of the Children’s Champion) which was set up as part of the section 55 duty. When asked by a caseworker or decision-maker, they can provide advice or comment on the welfare/safeguarding aspects being considered in individual cases, but only when they are approached to do so. When invited, they can also provide internal advice on the child safeguarding elements of broader policy. If that is the case, we would argue that the balance of SACC’s remit is flawed: the SACC should provide information, training and advice on the operationalisation of the best interests principle, including safeguarding matters, to all asylum and immigration caseworkers and decision-makers; and that, at a broader policy level, the advice proffered by the office should more open, transparent and available for public scrutiny.

The case of transnational marriage abandonment

The phenomenon of transnational marriage abandonment sheds light on the disconnect between family and immigration policies, and how this impacts families, and children in particular.
By way of background, transnational marriage abandonment is the deliberate abandonment of a spouse abroad, with the specific intention to prevent the return of the spouse to the UK – we often refer to those spouses as ‘stranded spouses’. Prior to their abandonment, many said stranded spouses lived in the UK with leave as the spouses of British citizens or settled persons. Many stranded spouses also have children, who are, in most cases, British. Some stranded spouses are abandoned in their country of origin with their children, while others are separated from the children, who remain in the UK with their other parent.
The family justice system recognises transnational marriage abandonment as an instance of domestic abuse, for example, in Practice Direction 12J: Child Arrangements and Contact Orders: Domestic Abuse and Harm. The definition used by the Home Office, on the other hand, does not explicitly include transnational marriage abandonment.[91]
The fact that transnational marriage abandonment is not explicitly recognised as a form of domestic abuse by the Home Office results in problematic outcomes not only for victims but also their families, and in particular for children. This is because victims of transnational marriage abandonment cannot ordinarily avail themselves of the protection afforded to victims of domestic abuse who are in the UK, and whose abuse did not take the form of abandonment abroad. Victims of domestic abuse in the UK with leave to remain as the spouses of British citizens and settled persons can apply for ILR if their relationship ends as a result of domestic abuse. However, victims of domestic abuse abroad cannot submit these applications, because the Rules require applicants to be in the UK. It would be difficult to justify the differential treatment of victims of domestic abuse in-country and out of country if transnational marriage abandonment were explicitly recognised as a form of domestic abuse by the Home Office.
The fact that there is no straightforward route for re-entry for victims of transnational marriage abandonment almost always has negative consequences for the children of said victims. In cases where the stranded spouse is separated from her children, these children will be living with a parent who has deliberately decided to take them away from their mother,[92] casting an obvious doubt on their character and parenting style. In many of the cases our member encounters, the abusive parent will also lie to the children about the reason their mother is away. In the best of cases, they tell the children that they are taking steps to bring the mother back to the UK; in the worst of cases, they tell the children that their mother abandoned them and does not love them. In both cases, when and if mothers do manage to return to the UK, their relationship with their children has become strained, at times irreversibly.
In cases where the stranded spouse is abandoned with their children, children have often been uprooted from their education, friends, and what they know as home. They find it difficult to integrate in a new country, often not knowing its language and cultural norms. More importantly, they are often secondary victims of the ostracisation suffered by their mother, particularly in countries where stranded spouses are blamed for their abandonment, such as India and Pakistan.
Quite clearly, neither of the above scenarios advances the best interests of children, contrary to the Secretary of State’s obligations under section 55 of the Borders, Citizenship and Immigration Act 2009.
Worryingly, our member informs us that even when there are ongoing family court proceedings, and even when family courts issue orders asking the Secretary of State to facilitate the return of a stranded spouse, Entry Clearance Officers routinely ignore such pleas and respond that the decision rests with them. This can result in stranded spouses abandoning their effort to return, or in family courts terminating proceedings as they see no way forward without the stranded spouse returning to the jurisdiction. This undermines the family courts’ efforts to safeguard children who come to their attention.
In this context, we would recommend that immigration officials lend more weight to Family Court orders, in particular bearing in mind the family court’s expertise in the assessment of children’s best interests.

The interaction between immigration and family cases, policies and proceedings

There is existing close interaction between the family and immigration jurisdictions. Certain Immigration Rules require proof of family relationships or parentage. Immigration tribunals and family courts routinely make findings about family relationships, domestic violence, the exercise of parental responsibility or contact with a child. Family courts and immigration tribunals are often called on to determine or recognise the validity of foreign marriages, divorces, adoptions, and family life rights. Their findings serve as evidence in immigration proceedings.
Family migration policies have been changed by reference to a clearer analysis of their impact on children and the need to safeguard and protect child applicants and children adversely affected by immigration decisions concerning family members. While these changes represent an improvement for the affected children, there remains clear deficits for such children. These deficits include:

the limited and inapt definitions of “parent” in the immigration rules;
the confusing text in Rules dealing with the entry of adoptive/adopted children and the prohibitive cost and delays associated with the assessment of prospective adoptive parents;
the lack of immigration rules or current policy dealing with the entry and stay of surrogate born children;
the lack of policy or rules allowing for the entry of family members who are witnesses or potential carers of children in the care system;
the omission of rules allowing for the entry or stay of kefalah order children and the associated omission of entry or residence rules pertaining to children the subject of special guardianship orders;
the need for changes in the domestic violence concessionary rules to deal with spouse and children impacted by ‘stranded spouse/child’ abuse;
the adverse entry and settlement outcomes for children cared for by a single parent when that child has contact with or receives assistance from the separated parent. The ‘sole responsibility’ rule allowing family settlement for the child only where the other parent is excluded from their life is inapt, outdated, and contrary to established family policy and practice encouraging children’s relationship with both parents.[93]

It is submitted that the Immigration Rules and policies must reflect family law arrangements and principles because of their close association and combined workings:

Both jurisdictions deal with intercountry adoption and international surrogacy arrangements and associated immigration problems where an adoptive or surrogate born child is refused entry to or leave to remain in the UK.[94] Parental and adoption orders can effect a change in a child’s civil status and confer British citizenship on the child on the making of the order where an adopter or parental order applicant is British. The Home Secretary is notified concerning such cases and may decide to intervene in such cases to test or challenge the adoptive or commissioning parent’s evidence.[95]
The jurisdictions have been required to grapple with complex procedural issues arising when a child, wrongfully removed from his home country, is the subject of an application by the ‘wronged parent’ under the Convention on the Civil Aspects of International Child Abduction 25 October 1980 (‘the 1980 Hague Convention’) as incorporated by the Child Abduction and Custody Act 1985 and the other parent and/or child has been granted refugee status or has made an asylum application which prevents or temporarily restrains the child’s removal to their former home. Such cases raise important questions as to the interplay between the 1980 Hague Convention and asylum law and the Family Court and Tribunal arrangements for those contested proceedings.[96]
Local authorities are often involved with vulnerable families where the child is in the UK without leave to remain or the potential carer parent of a British child is an overstayer or living abroad. In such circumstances the parties and court in care proceedings need to ascertain whether the child and/or carer can regularise their immigration status or whether the parent will be able to enter the UK and reside here as the child’s carer and obtain welfare and housing support.
Local authority responsibilities to ‘looked after’ children can include assisting them to obtain immigration advice and representation or seeking the court’s permission to change the nationality of a child in their care where the grant of British citizenship may lead to the loss of the child’s existing citizenship or the child’s parents or one parent objects to the proposed change of nationality.[97]
Where care proceedings concern non-British children born in or brought clandestinely to the UK, the Home Office and local authorities/family courts may be engaged in ascertaining their age, family identity, immigration and nationality status, as well as tracing their family or, where relevant, considering family neglect, abuse, trafficking or other harms in the UK or in the child’s home country. Allegations of forced marriage, the risk of genital cutting, domestic violence and trafficking may be in issue and contested in both jurisdictions in care and asylum/trafficking proceedings. The Secretary of State may be a party in the family proceedings.
The Family Court considers female genital mutilation protection order cases under paragraph 1 of Schedule 2 of the Female Genital Mutilation Act 2003, which relate to orders to prevent a child from being removed from the jurisdiction by the Home Secretary due to a real risk of female genital mutilation abroad. FGM may also be relevant to an asylum claim, and the immigration tribunal may make findings as to the risk of mutilation.[98]
Where an abusive British partner or parent has confiscated family passports and deliberately stranded an estranged spouse and children abroad so as to prevent their return to the UK – the stranded family members may make immigration applications for entry and also seek family orders to direct the child’s return and assist with a parent’s re-entry.[99]

Learning from the family justice system

There is a great deal the immigration process could learn from the family justice system. These lessons include the following:

The lack of properly adapted support for children, including teenagers, who are before the immigration tribunals. The family courts have expertise and a developed practice in providing proper training for lawyers representing children, support for child litigants, and established arrangements for children giving evidence in formal proceedings. The immigration jurisdiction practices in this regard fall short of the practice in criminal and family jurisdictions – a serious omission given the vulnerability of child witnesses in immigration proceedings.
The family jurisdiction provides policy guidance for children who are parties in litigation and those who are the subjects of or affected by the litigation outcome. This wider analysis is also required in immigration proceedings. Such guidance should include a fuller understanding of the deliberation and evidence relevant to the welfare analysis for children. There is confusion regarding this key issue within the tribunal deliberations.[100]
Priority should be given to cases involving children, particularly to children separated from family members. This priority should apply in decision-making and in the appeal system.
The Rules should accommodate the varied family status – as outlined above and consider legal and practical parentage arrangements as per the family court.

Question 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?

Throughout this evidence we have identified numerous matters in family migration policies that affect integration and participation in British society by would-be sponsors, and their sponsored family members. These start from the question of whether they can enter the United Kingdom at all, to participate, or whether it is considered that their family life can continue elsewhere and the sponsor or would-be sponsor relocates or remains overseas. However, once within the United Kingdom there are various impeding factors including the stringent requirements in the Rules that cannot be met, fees, delays in decision making, lengths of grants of leave, lengthy routes to settlement and uncertainty of being unable to remain in the UK, restrictive conditions attached to leave (including the NRPF condition, or those on fiancé(e)s and proposed civil partners being unable to work, access the NHS, or count their leave towards settlement), and the inability to have their close family members in the UK due to restrictive interpretations of what constitutes “family” within the Immigration Rules.
If family members are unwillingly kept abroad, due to the Immigration Rules delaying or impeding the family living together in the UK, when they wish to come to the UK and this is the family’s plan for the future, time to learn about British society, time in school, and time learning English is lost. The culture of decision making and the hostile environment, of which many of these factors are part and parcel, fundamentally impact the extent to which sponsors and their family members feel welcome in British society.
We also note that Appendix Family Settlement and the need for continuous residence could keep families in a ten year route to settlement for far longer, causing hardship and hindering integration. For example, one of our members highlights the case of a client first granted leave to remain on the ten year route who had two periods of leave and then overstayed after the second. She has three British children. She has since been granted leave to remain again, but the requirements in Appendix Family Settlement means her ten year route starts again from the beginning.
On the other hand, human rights concepts have been important in upholding family unity and thus enabling integration and participation in British society. This highlights the importance of the United Kingdom remaining a party to the European Convention on Human Rights and other international human rights instruments.

29 September 2022

[1] Ellie Benton, Jacob Karlsson, Ilona Pinter, Bert Provan, Kath Scanlon, and Christine Whitehead, Social Cost Benefit Analysis of the no recourse to public funds (NRPF) policy in London, page 12

[2] Lord Brown of Eaton-under-Heywood in Ahmed Mahad v Entry Clearance Officer [2009] UKSC 16 at [10].

[4] For example, it includes definitions for “BN(O) Adult Dependent Relative”, “BN(O) Household Child”, and “BN(O) Household Member”.

[6] See, for example, paragraph E-ECP.2.1, read with GEN.1.3. in Appendix FM to the Immigration Rules.

[8] See, The Adoption (Designation of Overseas Adoptions) Order 1973; The Adoption (Designation of Overseas Adoptions)(Variation) Order 1993; The Adoption (Recognition of Overseas Adoptions) Order 2013; and The Adoption (Recognition of Overseas Adoptions)(Scotland) Regulations 2013.

[9] TD (Paragraph 297 (i) (e): “sole responsibility”) Yemen [2006] UKAIT 00049 [52(iv)].

[11] See Jacqueline Bhabha and Sue Shutter, Women's Movement: Women Under Immigration, Nationality and Refugee Law (Trentham Books Ltd 1995), 143.

[12] For relatives, see paragraph 297(f) of the Rules which permits indefinite leave to enter for a child if ‘(f) one parent or a relative is present and settled in the United Kingdom or being admitted on the same occasion for settlement and there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child's care’, and the other relevant requirements are met.

[13] Jacqueline Bhabha and Sue Shutter, Women's Movement: Women Under Immigration, Nationality and Refugee Law (Trentham Books Ltd 1995), 146-148.

[16] See E-ECPT.2.2 in Appendix FM to the Immigration Rules which requires that the ‘child of the applicant must be- (b) living in the UK’.

[20] Paragraph GEN.3.2. of Appendix FM to the Immigration Rules allows for leave to enter to be granted where an application for leave to enter is considered under the Appendix but does not meet its requirements: ‘the decision-maker must consider, on the basis of the information provided by the applicant, whether there are exceptional circumstances which would render refusal of entry clearance, or leave to enter or remain, a breach of Article 8 of the European Convention on Human Rights, because such refusal would result in unjustifiably harsh consequences for the applicant, their partner, a relevant child or another family member whose Article 8 rights it is evident from that information would be affected by a decision to refuse the application’.

[21] Notably, a parent is defined in paragraph 6.2 of the Immigration Rules, and a ‘de facto’ adoption is further defined in paragraph 309A of the Immigration Rules, as situations where the adoptive parent or parents have been living together abroad for at least 18 months, ‘of which the 12 months immediately preceding the application for entry clearance must have been spent living together with the child’, and ‘have assumed the role of the child’s parents, since the beginning of the 18 month period, so that there has been a genuine transfer of parental responsibility’. It is a concept which exists in immigration law, but does not exist within family law. It applies to limited or indefinite leave to enter or remain in the UK under paragraphs 310 to 316 of the Immigration Rules.

[37] ILPA has been involved in the amendments to bespoke Ukraine routes, and identifying problems within them from the outset. See, for example, ILPA, ‘UKRAINE: Urgent policy and procedures for assisting those fleeing Ukraine’ (4 March 2022) <https://ilpa.org.uk/wp-content/uploads/2022/03/22.03.04-ILPA-Letter-regarding-Ukraine.docx.pdf> accessed 29 September 2022. House of Commons Home Affairs Committee, ‘Oral evidence: Home Office policy on Ukrainian

[39] Home Office, ‘Impact Assessment, Hong Kong British National (Overseas) visa’ IA HO0381, 22 October 2020, [4]. See Zoe Bantleman, ‘Hong Kong BN(O)s Caught Between Empires: Crouching Lion, Hidden Dragon’ (2021) 35(4) IANL 337 for an in depth consideration of this route and the justifications for discrepancies.

[40] During COVID the concept of an ‘exceptional assurance’ had to be introduced.

[41] For a recent consideration of bespokism, in relation to the Ukraine bespoke scheme, see, Joe Tomlinson, ‘Bureaucratic Warfare: Administrative Justice and the Crisis of the ‘New Bespokism’ (2022) 36(3) IANL178.

[42] However, Ukrainians with a ‘valid Ukrainian international passport’ can apply the ‘UK Immigration: ID check’ app and do not need to attend a visa application centre to give their biometric information.

[46] R (on the application of MM (Lebanon)) v Secretary of State for the Home Department [2017] UKSC 10 [80]

[49] R (W, a child by his litigation friend J) v Secretary of State for the Home Department [2020] EWHC 1299 (Admin) [11].

[51] See, Deighton Pierce Glynn, ‘Home Office’s NRPF Policy Found Unlawful for the Third Time in as Many Years’ (20 June 2022) <https://dpglaw.co.uk/home-offices-nrpf-policy-found-unlawful-for-the-third-time-in-as-many-years/> accessed 29 September 2022, detailing the five times it has been found unlawful. See also, R (on the application of Fakih) v Secretary of State for the Home Department (IJR) [2014] UKUT 513 (IAC); (W, A Child By His Litigation Friend J) v Secretary of State for the Home Department & Anor [2020] EWHC 1299; ST (a child, by his Litigation Friend VW) & VW v Secretary of State for the Home Department [2021] EWHC 1085 (Admin); R (On the Application Of AB & ors) v Secretary of State for the Home Department [2022] EWHC 1524 (Admin).

[52] Local authorities also have duties towards adults with care and support needs under the Care Act 2014, however section 21 provides that a local authority may not meet the needs for care and support of an adult to whom section 115 of the Immigration and Asylum Act applies and whose needs for care and support have arisen solely because the adult is destitute, or because of the physical effects, or anticipated effects, of being destitute.

[60] Ellie Benton, Jacob Karlsson, Ilona Pinter, Bert Provan, Kath Scanlon, and Christine Whitehead, Social Cost Benefit Analysis of the no recourse to public funds (NRPF) policy in London, page 28

[63] ibid 6. The report notes that ‘This analysis is based on Migrant Journey data from 2019 which refers to the previous visa and leave to remain categories under the tiered system. Since, then, the government has implemented reforms to the points-based system however the key categories are similar.’

[69] See, for example, calls by the Mayor of London: ‘Access to benefits for Londoners with 'no recourse to public funds'

[71] UK Visas and Immigration, ‘Visa decision waiting times: applications outside the UK’ <https://web.archive.org/web/20210111081352/https://www.gov.uk/guidance/visa-decision-waiting-times-applications-outside-the-uk> captured 11 January 2021, accessed 29 September 2022.

[76] UK Visas and Immigration, ‘Visa decision waiting times: applications inside the UK’

<https://www.gov.uk/guidance/visa-decision-waiting-times-applications-inside-the-uk#switch-to-or-extend-a-family-visa> accessed 29 September 2022.

[83] Home Office ‘Affordability fee waiver: overseas Human Rights-based applications (Article 8)’

[86] UN Committee on the Rights of the Child (2013) General Comment No.14 on the right of the child to have his or her best interests taken as a primary consideration.

[87] UN Committee on the Rights of the Child (2017) Joint General Comment no.3 of the Committee on the Protection of the Rights of All Migrant Workers and Members of their Families and no.22 of the Committee on the Rights of the Child on the general principles regarding the human rights of children in the context of international migration;

UN Committee on the Rights of the Child (2017) Joint General Comment no. 4 of the Committee on the Protection of the Rights of All Migrant Workers and Members of their Families and no.23 of the Committee on the Rights of the Child on State obligations regarding the human rights of children in the context of international migration in countries of origin, transit, destination and return.

[90] Home Office, ‘Every Child Matters: change for children. Statutory guidance to the UK Border Agency on making arrangements to safeguard and promote the welfare of children’ (November 2009) [1.14] <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/257876/change-for-children.pdf> accessed 29 September 2022.

[95] N (A Child), Re [2016] EWHC 3085 (Fam), [2017] 2 FLR 297; ASB & Anor v MQS [2009] EWHC 2491 (Fam), [2010] 1 FLR 748; Re IH (A Child) (Permission to Apply for Adoption) [2013] EWHC 1235 (Fam).

[97] W and Re Z (EU Settled Status for Looked After Children) [2021] EWHC 783 (Fam).

[98] In Re A (A Child) (Rev 1) [2020] EWCA Civ 731, the Court of Appeal held that the family court must conduct its own risk assessment of FGM, which involves the court making findings of facts on the balance of probabilities before it evaluates risk. It would not be bound by the assessment of risk by the First-tier Tribunal (Immigration and Asylum Chamber).

[99] S (A Child), Re (Guidance in cases of stranded spouses) [2010] EWHC 1669 (Fam).

[100] JO and Others (section 55 duty) Nigeria [2014] UKUT 517 (IAC); Arturas (child's best interests: NI appeals) Lithuania [2021] UKUT 237 (IAC).