Justifications for Migratory Restrictions - Essay Example

?Background For generations, family law in the UK has sought to keep the fundamental social structures of the UK intact and allow the proper socialisation and create the right atmosphere for the social and economic wellbeing of residents of the country (Diduck, 2003). This provision is therefore applicable to all members of the UK society because the society is one that has promoted equality and fairness for generations. However, in recent times, the UK has come up with stringent and tough immigration laws that have prevented a lot of people from coming into Britain. One of the biggest area that these new immigration laws have affected is the area of family law. Many migrants can assert a right to live with their family members if they gain legal residence here. However, the UK laws make it difficult for their family members to come into Britain. There are some pointers in law that give the government authorities the right to block these migrations for family unifications. However, this contrasts with UK family law and European Union Human Rights laws. This paper evaluates the conflict between human rights/family law and national immigration laws which prevent family unification. It begins by examining the fundamental rights of individuals in terms of family structures and European Union human rights laws. It goes on to examine the reality of migration into the UK and how these laws affect human rights. The paper identifies the grounds on which the UK authorities reject persons seeking family unifications and its implications in European Law. The paper goes on to identify the possible requirements that migrants and refugees living in the UK can satisfy in order to get their rights to family unification honoured. Core Components of Family Law From inception, the family has been the main place that individuals make their first social contacts. They build upon their relationships with their families to grow, study and enter mainstream society. The family was the pillar for the social and religious development of individuals in the olden days. After the reformation in Europe and the renaissance of the 15th to 18th Century, the family structures got modified. Since these events challenged traditional institutions with empiricism and economic rationality, the structures of the family changed (Stevenson, 2005). The family became a vehicle for the economic as well as social integration of children into the society. Currently, the family still remains a major component of the development of individuals. The family acts as the agency through which a child learns basic values of the society as well as the outlet through which the new generations get prepared for structured education for a future occupation. Families also preserve certain cultural and social relationships between adults through marriage and other bonds (Stevenson, 2005). In the UK today, families continue to maintain an important role in the society. Although a lot has changed over the past fifty years, the family remains an important component of Britain. In 2008, the UK government made the following pronouncement: “Families are the bedrock of our society. They nurture children, hep to build strength, resilience and moral values in young people and provide love and encouragement that helps them lead fulfilling livesCabinet Office, 2008). Thus, the primary role that families continue to play in Britain is to socialise the next generation and give them the necessary guidance to build a fulfilling adult life. Additionally, family structures enable adults to get to the peak of their emotional, financial and social life because it grants support and help to individual members of the society (Diduck, 2003). It is therefore important for the UK to keep family structures intact. Due to this, family law has evolved as an important component of law in Britain. Most people have a view of an idealised family system where there is a father, mother and children. However, the evolution in the social structures of Britain has caused the law to also evolve to maintain a family system that suits current social and cultural trends in Britain (Bainham, 1995). In today's world, marriages, parenting and blood relationships are being replaced with other legal forms of connections. This include civil partnership and the recognition of other family cultures in the context of multiculturalism. The European Union Human Rights Act of 1998 ensures this trend through various provisions that enhance the rights of individuals in the EU. One of them is Article 8 which focuses on the domestic lives of people in the UK. Article 8(1) states that: Everyone has the right to respect for his private and family life, his home and his correspondence In view of this statute, every individual in the UK has the right to live with and amongst his family members. This is a fundamental right that all members states that are signatory to the European Convention need to honour at all times. As a democratic country where there is equality enshrined in the fundamental laws of the UK, the law applies to all the citizens of the UK and legally resident persons. This therefore implies that all people in the UK need to have the right to certain fundamental and key elements of family law. Sensitive areas include amongst other things: 1. Marriages and partnerships: The ECHR Article 12 protects the rights of individuals to marry. This Article is in sync with the UN Declaration of Human Rights and the International Covenant of Civil and Political Rights (1966). These rights ensure that people get married and share emotions and support each other to attain their ultimate goals in life 2. Parenting: Parenting is controlled in Britain by two main pieces of legislature, the Children Act 1989 and Adoption and Children Act, 2002. These laws set the parameters for children to gain their rights to welfare from their parents. Parents are obliged by these laws to honour their responsibilities to their naturally born as well as adopted children. 3. Domestic matters and regulations: There is also a branch of family law that bothers on other domestic issues like domestic violence, divorce and several other elements. These domestic laws apply to people living in Britain and can sometimes apply to people living outside Britain. There are three main classes of people with foreign connections who can have legal claims to these UK family laws (Symonds, 2008): 1. Individuals who have living in the UK for a long time 2. People with social ties to people living in Britain. 3. Foreigners with the right to live in Britain These classes of people have the right to migrate into Britain on the basis of several aspects of UK domestic laws. They include foreigners who have had to stay in Britain for a long time to pursue certain things like education or work. It also include asylum seekers and refugees who have stayed in the UK for a very long time. Also, individuals overseas who have family members in the UK get a right to become united with their family members in the UK. Foreigners living legally in Britain have the right to invite their relatives and family members to join them in Britain so they can be satisfied with the main components of family law. Denial of these rights are in direct abuse to their fundamental human rights as enshrined in the EU Human Rights Act of 1998. Additionally, foreigners who live outside Britain with family members in the UK have a right to be united with their families in the UK. It is either they move to the UK to join their family members or their family members join them in the UK. This in itself is a restriction placed on people's fundamental rights to decide where they want to live. It is a human rights violation to prevent a person who wants to live in Britain with his parter from living together in Britain through refusal to grant entry of the spouse overseas into Britain. Migration Laws and Restrictions ?easures to keep people out or contain them in their country of origin have been escalating since the mid-1980s, in the form of visa requirements, 'safe' third country policies and carriers' liability(Kholi, 2003). The UK has embarked on certain systematic measures to curb immigration into the country. This deters entry by foreign nationals into the UK on several grounds. There are structured immigration policies and systems as well as clearly defined asylum policies and systems. The UK government requires people from certain countries, particularly countries in the developing world to go through visa procedures. In these procedures, they need to submit a completed form indicating their status in their home country and the purpose of their trip to the UK. These applicants must submit evidence to back their claims like introductory letters, proof of funds and other things. These are examined by a competent immigration officer either in the diplomatic mission of the home country or at a UK point of entry. Although many people qualify for the right to be reunited with their family members in the UK, they are refused entry to Britain because of some technicalities in these application processes. This is because there are numerous rules and regulations that govern the authorisation of entry into the UK. Many of these rules are implemented to protect the interests of the wider British society. Asylum seekers are people who have a reason to leave their home country because of a credible fear (UK Border Agency, 2012). These individuals come to the UK to seek refuge from some kind of life threatening event that targets them in their home countries. Such individuals gain rights to remain and the UK and the right to get unified with their family members. Asylum seekers have a bigger right to be unified with their families because they cannot go and live with their families in their home country. They therefore place a bigger strain on the UK authorities to expedite the processing of their family members' entry into the UK. However, there is again the issue of the government restricting these immigrations because there are some concerns that the Border Authorities might identify. Many of these issues make it difficult for them to authorise and allow the migrant to enter the UK to join their families. Justifications for Migratory Restrictions Although there might be some breaches or harm done to the fundamental human rights of foreigners living in the UK or their families, the government might have some legitimate grounds to deny entry of these migrants. The fact that a person has family links to the UK does not in anyway guarantee the rights of such a person to move into the UK. Article 8(2) of the European Human Rights Law elaborates on Article 8(1) which grants fundamental rights to individuals to exercise their rights to family. It states that: “There shall be no interference by a public authority with the exercise of the right [to family life] except such as in accordance with the law and is necessary in a democratic society in the interest of national security, public safety or the economic well being of the country and the prevention of crime and disorder, for the protection of health or morals, or for the protection of the rights and freedoms of others” This therefore implies that although the immigrant or refugee living in the UK has a fundamental right to be unified with his family living overseas, the UK government has the right to restrict this. This is because the wider society's needs and requirements must be protected at all times. Therefore, in cases where these social needs and expectations are endangered by an immigrant's demand for the unification of family members outside the UK, the state can step in with measures to curb the threat. This could be through the outright prevention of entry of such a person with family ties in the UK or through the restriction of the entry of such a person like granting limited stay periods amongst other things. In a landmark ruling, it was held that marriages do not confer the right for two people to live together in the UK1. This means that the fact that a person has a family link with another in the UK does not in anyway guarantee that such a person will be granted the right to move into the UK to live with his family member. Where the state can prove beyond reasonable doubts that a person with family ties to the UK will be a threat to the UK in certain areas, such a person might be refused the right to enter the UK to join his family members. Some of these threats include amongst other things, proof that person will harm the public safety of people in Britain. In rejecting a claim, the UK authorities have some obligations to show the legality and necessity to prevent the entry of a person with family ties in the UK (Symonds, 2008). This therefore means that there is an onus placed upon the UK authority to explain and show proof that the application of the individual cannot be authorised. First of all, the UK authority needs to show the legality of the rejection. They will have to show proof that it is lawful for them to take action against an individual to prevent such a person from entering the UK. They will therefore have to show proof that there is a good reason to prevent such an individual from entering the UK. Secondly, they will need to take action lawfully. The rejection must be according to a legally accepted procedure and all standards must be met. This include the need to show that the individual will have an adverse effect on the economic wellbeing of the UK or disturb the social harmony of the UK through crime and other activities. Thirdly, the UK authority rejecting the application of a person seeking to come to the UK must show that it is an act of necessity. In other words, there must be the need to show beyond reasonable doubts that there is an obligation to prevent this individual from entering the UK to join his or her family member who lives there. Once these three things are satisfied, a UK immigration authority may reject the application of a person seeking to enter the UK to join a family member. Overrides Against Migratory Restrictions As identified earlier, people with family ties outside the UK have the fundamental human right to be reunited with their family in Britain. Also, people who marry and build new ties have the right to live together with their spouses anywhere they chose to live, including Britain. This therefore means that there is a fundamental human right for people to exercise their rights to maintaining family ties. This is supported by UK law and international conventions and is entrenched by the European Human Rights Act of 1998. On the other hand, the state also has rights under the same laws to protect its citizens. This means that it needs to set up institutions and agencies to prevent the entry of undesirable elements. Nonetheless, there is a conflict and strain between the two components of European law: the right of people in the UK with ties overseas and the rights of states to protect their interests. In such conflicts, the concept of Proportionality is invoked. Proportionality The proportionality principle in Article 5(3) of the EC treaty states that an action by the community must not be more than what is needed to attain the objective at hand. This principle therefore makes it imperative for states to act within a boundary that is necessary to attain only the main objectives of preventing the entry of explicitly dangerous or undesirable persons who might abuse this privilege. Proportionality implies that a person's human rights are matched against the state's right to defence. This means that each application must be examined according to its own merit and important changes and adjustments made as and when necessary to ensure that none of the parties is disproportionately affected by the other. In this case, the onus is on the individual required to take certain reasonable steps to show that a relationship exists with the applicant. Secondly, the UK resident and applicant must prove that the individual is not going to be a burden to the state in any way. The UK border agency requires that in a case of a marriage, the parties show: “Intention to live permanently with the other means an intention to live together, evidenced by a clear commitment from both parties that they will live together permanently as husband and wife immediately following the outcome of the application in question or as soon as circumstances permit.” Establishing the Importance of the Individual The UK resident must show that the individual is important to him and there is a private or family relationship that exists between them. The individual may need to prove the degree of interference that the refusal or removal of such a person might cause. Integration Secondly, the UK resident person seeking his family member to join him or her in the UK needs to show proof that the individual can integrate into the society. This is social and economic in nature. Section 115 of Immigration & Asylum Act prevents the provision of welfare and other public rights to individuals subject to 'immigration control'. Individuals joining their spouses can be considered to be under immigration control. As such, they might not be permitted to enjoy certain welfare privileges and economic benefits. In this instance, the family member in the UK needs to show evidence that social and economic matters relating to integration will be taken care of. There will be the need for such a person to file motion statements and provide evidence against such refusals and removals. Conclusion Family law grants rights to individuals to a healthy family life. This is strongly supported by the state and it is a fundamental human right protected by the European Convention on human rights. This right gives individuals living in the UK with family ties overseas the grounding to claim the settlement of their family members in the UK. However, the UK also has some rights to prevent the entry of people on the grounds of family ties. This is also supported by European convention, national laws and international conventions. Due to the apparent nature of this conflict in law, the principle of proportionality binds the UK authorities to only refuse or remove people with family ties in a way that does not go beyond the required effort. This means there is the need for legal requirements to be met. Also, UK residents who have their family members refused or removed have to show proof of the family ties that exist, the importance of the individual and proofs of the ability to support the integration of the person into the society. References Bainham, A. (1995) 'Family Law in a Pluralistic Society; in Journal of Law & Society 23:234 Diduck, A. (2003) Law's Families London: LexisNexis Butterworths. Kholi, Ravi (2003) Child & Family Social Work With Asylum Seekers & Refugees Hoboken, NJ: John Wiley & Sons Stevenson, Michael (2005) Evolution of Family Law New York: Stewart-Kane Publishing. Symonds, Steve (2008) Article 8 ILPA Information Sheet. UK Border Agency (2012) The Asylum Process Available at: [Accessed: 1st February, 2012.] UK Border Agency (2012) Rights & Responsibilities Available at: [Accessed: 1st February, 2012] UK Border Agency (2012) Spouses Available at: [Accessed: 1st February, 2012] Read More