Family Reunion and Immigration Laws in the United Kingdom - Assignment Example

Family Reunion and Immigration Laws in the United Kingdom Table of Contents Page 1 Summary 2 2 Introduction 3 3 Prescribed Regulations in UK–Immigration And Eligibility Criteria 4 A Categories of Visa 4 i) Spouse Visa 4 ii) Family Member Visa 5 iii) Adopted Child Visa 6 B Recent Legislative Development 6 C Special Criteria: ELR and ILR 7 4 ECHR’s Perspective – An Overview 9 5 Judicial Activism – Pathbreaking Decisions 10 6 Conclusion 14 7 Bibiliography Books 15 World Wide Web 16 Case Laws 17 1 Executive Summary A family unit is the fundamental building block of any society or community. The primary foundation of a family unit is unity. This unity stands fractured in the modern era due to large scale immigration of population from one country to another. A study has been made of prevailing law in both the UK as well as the EU and a comparative study has been made. It is found that the EU laws are more liberal than the UK and although attempts are being made to bridge the gap there are local issues that need consideration. The Judiciary on the other hand is more active and recent decisions show a leaning towards more humane considerations and are generally in favour of the immigrants. The courts understand it is in the interest to have more happily settled families of the immigrants for maintaining a harmonious society, Such satisfied families will contribute positively for their own developments and for the development of the entire state. It has been concluded that by and large the laws are well thought out and with a proactive Judiciary the immigrant can look forward to more humane treatment and the objective of having united families is being thoughtfully handled. 3 INTRODUCTION “…it is important for the law in free society expressly to protect the integrity and independence of families…” - Hansard The family is universally recognized as the fundamental group unit of society and as such, it is entitled to protection and assistance from society and the State. Most of the legal instruments in existence, whether universal, regional or national in nature, recognize the right to family life and hence the right to family unity as a logical corollary, the latter being an integral part of the former. Irrespective of the status of a human being, the aforementioned right should thus apply to him. However, few of the said instruments are explicit about how and where the right is to be affected with regard to families with international borders acting as barriers between them. The integrity of an immigrant family can be looked upon as both a legal right and a humanitarian principle; at the same time, it is also an essential framework of protection. It is the answer to the success of durable solutions for peaceful settlement of the immigrants in the country which they have made their home and to them, the right to family unity implies a right to family reunification in the said country. This is especially true for individuals who, as refugees, are without the protection of their own countries. If they lose contact with their family members, it may disrupt their major remaining source of protection and care. Moreover, it may put those people out of reach for whose protection, a refugee feels most deeply responsible. A careful scrutiny of the immigration norms of the United Kingdom (UK) will reveal that the country shares a duality of allegiance with all its fellow members of the European Union (EU). On one hand there are national laws and rules regarding immigration and on the other there are EU and European Commission (EC) directives. The objective is to overcome the challenge of merging these two separate sets of allegiance and in order to achieve uniformity in legislative practices. No doubt an uphill task by any standard, UK has used the two organs called legislature and judiciary rather effectively. With regard to a sensitive issue like family reunification such efforts on the nation’s part have been ably supplemented by instruments like the European Convention on Human Rights (ECHR). 3 PRESCRIBED REGULATIONS IN UK IMMIGRATION AND ELIGIBILITY CRITERIA A. CATEGORIZATION OF VISA A visa is the most important and relevant factor in the matter of immigration. It is an endorsement on the passport of the holder allowing him to enter the territory of the visa-issuing country. A passport holder, wishing to reside in a foreign country permanently needs an immigrant visa, the type being defined by the immigration law of the country concerned and related to the purpose of travel. At present, the British Government has broadly categorized issuance of visas into three categories, viz. Non-Settlement Visas, Settlement Visas and those for Diplomats and Members of Foreign Government. Of these three, the second one, viz. the Settlement Visa is the one that is of importance in the current context of immigrant family reunion. It can further be classified into 3 groups, viz. Spouse Visa, Family Members Visa and Adopted Children Visa. i) Spouse Visa Any person who wishes to reside permanently in UK as the husband, wife, civil partner, fiancée, proposed civil partner, or unmarried partner or even same-sex partner, of another person who is coming to UK or has already settled there or will be admitted for settlement in the country when he arrives there, is eligible to make an application under this category.1 Evidently, the scope of said eligibility is pretty wide, which takes into consideration many situations that may arise in course of migration. There are however, certain other conditions to fulfill. Firstly, the age of the applicant as well as his/her spouse must be above 18 years and that they must go and live permanently together in UK, having the financial capacity to support themselves without any help from public funds, which seem pretty reasonable. Secondly, and these are certain conditions that more dubious in nature, the nature of civil partnership that exists between the applicant and his/her partner must be recognized in UK. Herein lies the question of the plight of those couples, who may be married in accordance with the culture existing in their homeland, but the said marriage, may not be recognized under the English law. Thirdly, there is the question of accommodation, which, according to the UK guidelines, should be owned or lived in only by either of the spouse. Here a question arises, what happens when the couple have to stay with any of their relatives who may be residing in UK, while they arrange for accommodations of their own? The law seems silent on this regard. The law further provides that if any one of the couple has more than one spouse, only one will be allowed to join them, it disregards religions like Islam, where a person can legally have more than one wife. So, why should any of the lawfully wedded wives is deprived of her right to reunite with her husband? At the other end of the scale, the arrangements made to enable a person to join his/her unmarried or same sex partner in UK indicate a much-desired liberal outlook, but they are required to produce evidence of a relationship persisting for 2 years or more. ii) Family Members Visa In this case, the applicant has to qualify as a child, parent, grandparent or other dependent relative of a person present and settled in UK. Complications exist with respect to the requirements under this category too. The above- 65 years age limit imposed on parents or grandparents does not appear logical, although exceptions can be made if the parent/grandparent concerned is living alone in his/her homeland on most compassionate grounds. This term seems to provide considerable lassitude by way of interpretation. Besides, the applicant has to be financially dependent on the relative settled in UK, which means that a bar can be imposed to a financially independent person who wishes to reunite with his/her progeny currently residing in UK. In case of a child applicant, certain arrangements have been made indicating considerable foresight on the part of the government. For example, if one of the parents or even a relative other than a parent of a child applicant is settled/to be admitted for settlement, and there are serious and compelling family or other considerations which make the applicant undesirable, then suitable arrangements can be made for the applicant’s care in UK. Usually a child can’t obtain permanent residence in UK if only one of his parents is living there, unless that parent has sole responsibility for the child, or there exists some special reason for the child to be allowed to join his parent in UK. Furthermore, when an applicant, who is the child of a parent granted refugee status in UK, is applying for an indefinite leave, the same is eligible to qualify as ‘family reunion’. A passionate consideration is required on the issue of emotional and physical bonds between the family members. An applicant who is financially dependent, either entirely or partially, on his UK sponsor and doesn’t have any other close relative to depend on financially, must still prove that his circumstances are exceptional in relation to other applicants in the same position, a requirement that appears apparently a bit on the harsh side. iii) Adopted Child Visa This category of visa enables an adopted child to reunite with his parents who are residents of UK. However, the adoption must have taken place in a country designated in the Adoption Order 1973 and at a time when either both adoptive parents were resident together in another country or any one of them was settled in UK. The adoption has to be justified by an inability on the part of the original parent(s) or due by current career(s) of that child to provide for him. There has to be a genuine transfer of responsibility to the adoptive parents, besides which, it also needs to be established that the adoption hadn’t taken place merely to facilitate entry to UK. The law has also made Prior Entry Clearance mandatory for admission in this capacity.2 The usual documents that are required for admission under either of the aforementioned capacity like marriage certificate, birth certificate, proof of relationship, adoption papers etc. are reasonable. However, there are other provisions under which such requirements can even be waived altogether under demand of exceptional circumstances. B. RECENT LEGISLATIVE DEVELOPMENTS Recently, the British Government has announced that, from 2 April 2007 onwards, all adults applying for settlement in the UK (also known as ILR or "indefinite leave to remain" or "permanent residence") will need to pass a "Life in the UK" test or an English language course. The requirement will be in addition to the usual requirements for settlement and will affect applicants aged 18 to 65. Forming part of the Government’s managed migration five-year strategy; the requirement aims to ensure that residents have the requisite language skills and citizenship knowledge to integrate successfully into British society. In order to meet the new requirement, applicants must either pass a "Life in the UK" test, if they already possess a good standard of English - ESOL (English for speakers of other languages, Entry 3 standard or above) or pass an "ESOL with citizenship course", if their standard of English is below ESOL Entry 3 standard.3 C. SPECIAL CIRCUMSTANCES: ELR AND ILR It should be noted that the families of asylum seekers, whose claims have not been determined, do not qualify to join them in the UK for family reunion purpose. Neither can the parents and siblings of a minor, who has been recognized as a refugee, barring exceptional cases. Only pre-existing families are eligible for family reunion i.e. the spouse, civil partner and minor children who formed part of the family unit prior to the time the sponsor fled to seek asylum. As has been mentioned earlier, other members of the family (e.g. elderly parents) may be allowed to come to the UK if there are compelling, compassionate circumstances. Family reunion can be refused if family members fall within the terms of one of the exclusion clauses in the 1951 UN Convention, according to which, an applicant must not have committed a crime against peace, a war crime or a crime against humanity, a serious non-political crime, or been guilty of acts contrary to the purposes and principles of the United Nations. Where the sponsor has refugee status in UK, his family members are normally recognized similarly. However, it may not always be possible to recognize the family abroad as refugees – for example, they may have a different nationality to the sponsor or they may not wish to be recognized as refugees. However, if they meet the relevant criteria, they should still be admitted to join the sponsor. The sponsor is not expected to meet the maintenance and accommodation requirements of the Immigration Rules, but the spouse/civil partner and dependants must show an intention to live together permanently. Endorsements of entry clearance is necessary, the fee concerned being waived in case of refugee immigrants. Where the sponsor has exceptional leave to remain, i.e. ELR (granted prior 1 April 2003), family members qualify to live with him once he becomes eligible to apply for indefinite leave to remain (ILR). This is usually on completing four years ELR. In cases where the sponsor is not yet eligible for ILR, the spouse, civil partner and minor dependent children may, if there are compelling compassionate circumstances, qualify for entry clearance under Home Office policy "outside the Rules". Care should, however, be taken to allow for the fact that in many cases applicants will not have seen the sponsor in recent years in view of the requirement for the sponsor to have completed four years ELR. Refusal on these grounds should only be considered if there is strong evidence to suggest that the intention to live together may be in doubt (e.g. the known existence of a long-term partner of the sponsor). Procedural safeguards have been installed in the form of provision for deferral of applications pending further enquiries with the Evidence and Enquiries Unit if it is considered necessary to establish the facts e.g. the sponsor's status or the claimed relationship to the applicants.4 Where it is clear from the beginning that an application clearly does not meet the requirements, applicants should be advised by the concerned authority that there is no provision in the Rules for the their application, that they do not meet the policy criteria and that their applications might not be successful. If, in spite of this advice, the applicants decide to proceed, the fee should be taken and an interview conducted to establish the background and circumstances to the application with a view to determining whether there are compelling compassionate circumstances involved. Even a right of appeal is provided to the applicants, thereby introducing the constitutional concept of judicial review of the procedure. Applications for family reunion where the sponsor holds Humanitarian Protection should be dealt with in the same way as those with ELR. However, they can only be considered after the sponsor has obtained ILR, which is usually after 3 years. There is no facility to refer any case to the Home Office for consideration outside the Rules, before the sponsor has obtained ILR. Applications for family reunion where the sponsor holds Discretionary Leave (DL) should be dealt with in the same manner. However, they can only be considered after the sponsor has obtained ILR, which is usually after 6 years. There is no facility to refer any case to the Home Office for consideration outside the Rules, before the sponsor has obtained ILR.5 4 ECHR’S PERSPECTIVE: AN OVERVIEW Family reunification across borders is shaped, but not entirely defined, by the State’s sovereign power to control the entry of non-nationals. As with the right to family unity, there has been a progressive development in the international law of family reunification over the past decades. It is now widely recognized that the State has an obligation to take affirmative action so as to reunite close family members who are unable to enjoy the right to family unity elsewhere. The Fourth Geneva Convention of 1949 devoted considerable attention to the problems of ‘families dispersed owing to the war’, providing for mechanisms such as family messages, tracing of family members, registration of children etc. Similar sentiments have been voiced by the first Additional Protocol in 1977 as well as the 1975 Helsinki Accords, as well as the Conference on Security and Cooperation in Europe (CSCE) in 1989. However, no other instrument has played so pivotal a role in the field of family reunion in UK immigration law as European Convention of Human Rights (ECHR), which requires Contracting States to permit settlement of family members, particularly partners. A major regional European human rights instrument, the ECHR has been a source of extensive borrowing by the Community Law, which governs UK as a Member State through its own Charter of Fundamental Rights. Articles 8 and 14 are quoted below: “Article 8: 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. Article 14 The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” Articles 8 and 14 of ECHR are crucial, indicating that the Contracting States must respect and not unjustifiably interfere with the individual’s family and private life and must refrain from discrimination in the enjoyment of other Convention rights.6 5 JUDICIAL ACTIVISM: PATHBREAKING DECISIONS In respect of Article 8, the problems relating to the definition of ‘family’ eligible for its protection still persist. A married heterosexual couple definitely qualifies, unless the marriage is one of convenience. The ECHR also stresses upon factual reality to include unmarried heterosexual couples7. Such relationship is particularly likely to fall within the scope of ‘family’ if it is longstanding or if the couple has taken the opportunity to cohabit or raise children together.8 Extra-marital relationships existing concurrently with ongoing marriages may be treated more harshly than non-marital relationships, as was seen in X & Y v Switzerland9. The period of cohabitation, though important, is not totally decisive, unlike the stability of the relationship and the parties’ intention, under which it is important. Although the ECHR has till date refrained from suggesting that a same-sex couple might be included within the definition of a ‘family’ for the purposes of Article 8, still the criminalization of homosexual activities between consenting adults is at present being recognized as a breach of the said Article. The case of Salguiero da Silva Mouta10 seeks to indicate progressive development in this respect. In that case, the ECHR had proclaimed that sexual orientation was one of the grounds of discrimination covered by Article 14. The same principle was followed in cases like Frette v France11 and Karner v Australia12 as well as in UK precedents like Fitzpatrick13. The present position on this issue is that the ECHR accepts in principle that interference with same-sex relationships and refusal of settlement to such couples may constitute interference with private life. It has not been very long since the ruling of European Court of Justice (ECJ) to the effect that a provision allowing EU Member States to verify if certain child family members meet a condition for integration before allowing entry and residence is not contrary to EU or human rights law.14 Currently, under EU law, a EU national is permitted to bring certain family members with them to live and work in other EU Member States, regardless of the family member's nationality. This means that non-EU family members (also known as 'third country nationals') have a right to accompany the EU national. Article 4 of the 'Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification' states that “By way of derogation, where a child is over 12 years and arrives independently from the rest of his/her family, the Member State may, before authorizing entry and residence under this Directive, verify whether he or she meets a condition for integration provided for by its existing legislation on the date of implementation of this Directive”. As soon as the European Council issued this directive, the European Parliament challenged the same for a number of reasons; one of them being that the clause was not in accordance to the fundamental EU principal of family reunion. The Parliament objected to the fact that Directive allowed Member States to prevent family reunion by way of the derogation and further claimed that the clause was against the interest of children and the principal of non-discrimination on grounds of age. On the main point, the ECJ were of the opinion that the principal of family reunion and Article 8 (family life) of the European Convention of Human Rights did not mean that Member States should be denied a certain margin of appreciation when they examined applications for reunion. The derogation in the Directive was no different from rights of Member States accorded by the European Court of Human Rights in that court's decisions on Article 8 cases. The ECJ finally dismissed the action, holding that the clause did not discriminate on the grounds of age, as 12 years old was an age when the child could be said to have lived for a relatively long period of time in another environment and integration in the Member State may be more problematic.15 On 30 April 2006 new rights for EU citizens and their family members came into effect in the UK in the midst of changes to the UK immigration system as a whole. The new rights derive from EU Directive 2004/38, which merges the previous rules and extends the rights of EU citizens and family members of any nationality (EU and third country) to move and reside within the 25 member States of the Union. The Directive was the catalyst for several of the recent changes announced to the UK immigration system as the UK Government has sought to bring various non-EU related provisions into line with rules applying in other European countries. For example, from 3 April 2006 persons in various employment related UK immigration categories would need to have resided continuously in the UK for 5 years (increased from 4 years) in order to be able to apply for permanent residence in the UK. This equals the 5-year period that will be required for EU citizens and their family members from 30 April 2006.16 Critics had earlier argued that indirect race discrimination resulted from the exclusion of third-country national sponsors from EC free movement law rules on family reunion, which only cover the family members of EU citizens. Following the adoption of the recent Directive on the subject, this argument is no longer valid. However, the highly graduated distinctions between sponsors on grounds of nationality, clearly still results in indirect race discrimination, since non-EU citizens have far fewer rights to have their family members join them under the said Directive than EU citizens who exercise free movement rights have according to EC free movement laws. European Court of Human Rights has categorically rejected the race discrimination argument in the Abdulaziz case, along with later rejections of arguments based on Article 14 ECHR (the non-discrimination clause) in cases like Moustaquim and C?17 In Abdulaziz, the Court only compared the general rules for admission to the rules applicable to those sponsors with close links to UK. It did not examine whether UK could have different rules for different countries. In Moustaquim and C, on the other hand, the Court did accept that EU Member States could not just maintain different rules regarding nationals and non-nationals, but EU citizens and non-EU citizens as well, at least as regards expulsion. But it should be recalled that the Court condemned nationality discrimination strongly in its Gaygusuz judgment18, concerning discrimination related to social security benefits. As for admission, the Court argued in Abdulaziz against a finding of race discrimination on the grounds that UK rules restricting family reunion are being attacked were an attempt to restrict primary immigration and hence not directly discriminatory. This finding was not affected by a favourable rule for those with UK ancestry, as these were considered exceptions for the benefit of those with close links with UK, which do not accept the tenor of the general rules. It can be said, this ruling rather seems to confuse the separate issue of the rules on primary immigration, a subject outside the purview of human rights law, with the family reunion rules under Article 8. There has also been an international trend of the judiciary seeking to uphold State refusals to allow entry, as in cases like Gul v Switzerland19. This trend is sure to influence the state of immigration affairs in UK, itself a major global player. 6 CONCLUSION “Family life is the foundation stone of society and we tinker with it at our peril.” Hansard The family is the building block on which the whole community rests. Strong families are needed to build strong communities and the family’s strength lies in its unity. A diversified or dispersed family is unable to lend any strength to the community it belongs to hence will always be the weaker link of the community. Laws have always respected this view and have made sincere efforts to redress situations where the family unity is hurt or likely to be impaired. In the modern era Immigration has become a reality that cannot be ignored. This has brought question of family unity to the forefront. Normally people migrate out of choice to look for better prospects or out of compulsion to seek refuge in other countries to escape oppression in their own countries. In most cases it is the individual who migrates, and needs the moral support of his family as a natural human need. UK has devised many laws to facilitate such family reunions for its immigrant population and while some may appear stringent, on the whole they are accepted as acceptable. There are exceptions dealt with on compassionate grounds and there have been amendments from time to time in the face of changing environments and circumstances. Ever since the creation of the EU a new set of laws have been passed for the new union that vary in content although the objectives remain same. In the larger community of nations, there is more liberalization and member states are required to respect these in order to bring about conformity. However there are occasions when local environment have favoured a more restricted view. Such cased have been dealt rather admirably in the UK by the Judiciary although opinions still differ on some rulings. With passage of time attempts are being seriously made to incorporate the more liberal views as laid down by the ECHR laws. The Legislative view is still myopic but under the influence of ECHR the Judiciary is taking a more liberal attitude. Hence we can expect a better future for the immigrants and their families in the UK. 7 BIBLIOGRAPHY Books. Cohen, Steve, Beth Humphries and Ed Mynott, From Immigration Controls to Welfare Controls, 2002, Routledge, New York. Jain, Manish, Nabhi’s Handbook of Visa Information, 2007, Nabhi Publications, New Delhi. Jastram, Kate and Kathleen Newland, Family Unity and Refugee Protection, from Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection, Erika Feller, Volker Turk and Frances Nicholson (Ed.), 2003, Cambridge University Press, UK. Toner, Helen, Partnership Rights, Free Movement and EU Law, 2004, Hart Publishing, Oxford and Portland, Oregon. Toner, Helen, Partnership Rights, Migration and EC Law, from European Union Law from the Twenty-first Century: Rethinking the New Legal Order, Vol.2, Takis Tridimas and Paolisa Nebbia (Ed.), 2004, Hart Publishing, Oxford and Portland, Oregon. World Wide Web Diplomatic Service Procedures - Entry clearance Volume 1 - General instructions (05/12/05), Available at http:///www.ukvisas.gov.uk/servlet/Front?pagenamOpenMarket/ Xcelerate/ShowPage&c=Page&cid=1036679096869, visited on 17.04.2007 . European Court of Justice allows EU Member States to impose Conditions on Family Reunion, Available at http://www.gherson.com/articles/european-court-of-justice-allows-eu-member-states-to-impose-conditions-on-family-reunion, visited on 18.04.2007 What You Should Know about Staying in the UK, Available at http://www.tht.org.uk/Content.aspx?ciid=3195, visited on 17.04.2007. Gateway Protection Programme: Family Reunion Rights for the Resettled Refugees, Available at http:// www.refugeecouncil.org.uk/OneStopCMS/Core/CrawlerResourceServer.aspx? resource=16D9269F-ECBC-4710- AF10384299A971C1&mode=link&guid=e350add558554ea995b1250ceb546cba, visited on 18.04.2007 http://www.refugee-legal-centre.org.uk/briefing071004.doc., visited on 18.04.2007. Case Laws: Articles 8 & 14, ECHR, Charter of Fundamental Rights. X, Y & Z v UK Application 21830/93 (1997) 24 EHRR 143 Da Silva Mouta v Portugal Application 33290/96 (2001) 31 ECHR 47 Application 36515/97 Application 40016/98 Judgment of 24 July 2003; also see Ghaidan v Mendoza [2002] All ER 1162 Fitzpatrick v Sterling House Association [2001] 1 AC 27 Case C-540 European Parliament v Council (2006) ECJ (Grand Chamber) 27/6/2006 Toner, Helen, Partnership Rights, Free Movement and EU Law, 2004, p. 366 See Abdulaziz and others v UK (Series A, no. 94), Moustaquim v Belgium (Series A, no. 193) and C v Belgium (Reports 1996-III). Reports 1996-IV; see also Poirrez v France, judgment of 30 Sep. 2003 Application No. 53/1995/559/645, 19 Feb. 1996 Read More