Re-evaluating family immigration policy: Part 2

In what circumstances will family separation be justified?

Photo by Nathan Dumlao on Unsplash

Some six months later, I am very belatedly returning to my planned series on family immigration policy. I’ve found that my capacity to write stuff is not as unlimited as I had previously thought…

You can read the first part in the series here and also read the ten questions that I asked at the outset, adapted from a similar set of questions once asked by US immigration academic Hiroshi Motomura.

This time I’m looking at family separation and question three:

In what circumstances will family separation be justified?

As ever with this whole series, there’s a lot of overlap. Here I’m going to look primarily at the spouse minimum income rule as an example of how the imposition of conditions on family immigration works in practice.

In a later instalment I hope I’ll be able to turn to separating families on grounds of public policy. Here in the UK, this might be about the criteria for what we call deportation or it might be about the criteria for what are sometimes called the ‘general grounds for refusal’. But that’s for another day.

Some might say the real question should be whether family separation ever be justified? I am going to dodge that and simply assume that it can be, given that family separation occurs all the time in all modern immigration systems of which I am aware.

Together. But where?

Where a person marries a foreign national, I personally would say they have a quite reasonable expectation that the foreign national will be able to live with them in their own country.

There are some who say this expectation is not reasonable: people shouldn’t just be able to choose where to live together if they come from different countries.

Human rights law doesn’t help

Human rights law — which is incredibly weak despite its portrayal as over-mighty by government and the media — actually comes down on the latter side of the debate. In the landmark case of Abdulaziz, Cabales and Balkandali v United Kingdom [1985] ECHR 7, the European Court of Human Rights famously held that couples do not have the right to chose their country of residence:

“The duty imposed by Article 8 (art. 8) cannot be considered as extending to a general obligation on the part of a Contracting State to respect the choice by married couples of the country of their matrimonial residence and to accept the non-national spouses for settlement in that country.” (Para 68)

This continues to be considered good law today. And it continues to influence every single refusal of a family visa. Here’s an example from a very recent case of mine where a foreign spouse was applying to remain in the UK having entered on a visit visa. That is normally something the rules do not allow. Instead, you must return to your country of origin and apply for a spouse visa from there. In this case the family argued an exception should be made. The Home Office said:

It is considered to be reasonable to expect you to return to your country of domicile and continue to enjoy your family life. Whilst this may involve a degree of disruption to your private life, this is considered to be proportionate to the legitimate aim of maintaining effective immigration control…

The refusal letter, as is also standard, went on to suggest the relocation abroad would only be temporary anyway:

although your partner is under no obligation to leave the UK, it is reasonable to suggest that it is open to him to relocate to Russian Federation with you (should he wish to do so) until you obtain the correct Entry Clearance into the UK.

The Home Office eventually decided to withdraw their decision in that particular case because of the small matter of the war and the official government advice that British citizens should not, in fact, travel to Russia. It was accepted that the British partner could not go to Russia and that the Russian spouse had a good reason for seeking an exemption from the normal rule.

Imposing conditions

The reality of human relationships is that people do expect to be able to live together in a place of their choosing. Most of us would probably say that is not unreasonable. But most of us would also accept there might be some conditions. To take an extreme example, if someone wants to marry an active terrorist, that is their business; but it is not just their business if they want to bring them into our shared space.

The argument is really therefore about what conditions are imposed. And if the conditions are not met, what then should happen? Let’s think it through.

Failure to meet conditions

One option is to prevent the person entering or to expel them if already present. That leads to family separation and is likely to be very harsh. If the conditions are hard to satisfy, a lot of people are going to be affected and a lot of people are going to get very upset. Particularly in cases of expulsion, as I discuss in a moment.

In turn, this suggests the conditions therefore should not be too onerous, to avoid too many separations and to render the separations that do occur justifiable on some level.

The present UK government clearly didn’t get the memo. The minimum income for a spouse visa is now due to be ratcheted up to £38,700, which is more than about 70% of UK residents can afford.

Another option is to give non-compliant families less favourable treatment in some way as a signal of state disapproval. At the moment, the UK approach is to impose a longer period of qualifying residence prior to settlement, which means a longer period of precarious status, worse employment prospects and a lot more money to find to pay the additional extortionate immigration fees the longer temporary residence necessitates.

This does indeed signal disapproval and it is certainly experienced as disapproval by those affected. They hate and resent it. What is the point? Will it really encourage other families to be compliant? The threat of being treated less favourably isn’t ever going to get the sponsoring partner a better job with more pay, is it?

Let’s be honest: this is really the imposition of a penalty. It’s a very significant emotional and financial penalty.

Allowing a family to be together in the country but imposing a penalty on them because of their income or accommodation or prior immigration status really achieves nothing other than socially and economically handicapping the family concerned. It harms any children. It’s kicking someone when they are already down.

And it has no useful immigration policy outcomes. Family migration is a small sliver of the overall net migration figures. It doesn't stop the families being formed in the first place, if that’s what policymakers hoped for, and it therefore doesn’t reduce the burden on public funds or anything like that either. The families affected are still here, remember. If anything, such a policy imposes a social and economic productivity burden by deliberately holding back some members of society from their full potential.

Is refusal of entry the same as expulsion?

Family separation can take two forms. One is to separate families by preventing — or at least interfering with — full family formation in the first place. The other is by forcing a member of an established family unit to leave.

The issues are different, I think. Different rules should therefore apply to these situations.

Preventing full family formation by preventing entry of a new spouse or partner will usually be maintaining the status quo, in the sense that the person in question is currently outside the UK and will remain so. Nevertheless, it is clearly true that refusal of entry to a family member will radically disrupt the life of the sponsoring partner, who will face a choice of moving abroad or separating. This is the same choice they face if a person with whom they have been living is expelled.

But it feels qualitatively different to change the status quo by forcing a person to leave their place of residence, uprooting them from their current situation and disrupting the existing lives of their family members. The couple is more likely to have children, for example, who would either have to leave their existing schools and friends or grow up without one of their parents. The impact on the foreign family member and their network is also greater because they are being uprooted rather than remaining where they are.

The consequences of refusal of entry are bad enough but the stakes will often be higher for an expulsion decision.

The rules on expulsion ought therefore to be more tightly drawn than for refusal of entry, in the sense that a higher threshold of poor behaviour or similar should be needed for expulsion. Similarly, it would be wrong to strictly enforce identical rules for extension of visa or settlement applications compared to entry applications.

To put it another way, the rules should be more generous and respectful of family life the more established the family is. This is what Hiroshi Motomura calls an affinity-based approach to making immigration rules.

How do the UK rules measure up against this standard?

In general, UK family immigration rules draw no distinction between a newly formed family and a long-established one.

It was not always this way. Couples who could prove they had lived together for four years or more did not used to have to endure the “probationary period” and could apply immediately for settlement. That long-standing rule was abolished in 2012. The rules on expulsions used to require higher levels of misconduct than the rules on entry but are now identical.

The UK requires a sponsoring partner to earn at least £18,600. Refusal of entry for failing to earn this much is bad enough. But requiring the family member to leave the UK after five years of living together because the sponsoring partner is now part-time or has recently lost their job seems unjustifiably harsh. The UK rules do recognise this to some limited extent, by enabling the foreign national family member’s earning power to be taken into account for extension and settlement applications but generally not for the initial entry application.

There are other conditions. A certain level of fluency in English is required for entry, which can be quite hard to attain in a non-immersive environment and if from a poorly educated background. A higher standard of English is required to apply for extensions and settlement, but that is easier to attain once you are within the country.

Otherwise, though, the grounds for refusal and entry are, I think, broadly the same. One of the reasons it has taken me so long to finish writing this post is that my memory was that the rules for entry and expulsion used to be different. Successive changes to the rules over the last ten to fifteen years have erased those differences.

Long-established families should be treated differently. This is for two reasons. Firstly, at least some of the policy reasons for imposing conditions are no longer relevant to long-established families. Secondly, the impact of not meeting any conditions is even worse for long-established families compared to newly-forming ones.

It is not hard to imagine that the policymakers responsible for changes in 2012 considered that allowing long-established families to enter would defeat the purpose of the minimum income policy by offering a ‘loophole’; stay together long enough and you no longer need to meet the rules. Well, yes. But isn’t it actually quite reasonable for a long-established family to benefit from more generous rules than a newly-forming family?

A lot of the current family immigration rules smack of being done simply because they could be. Policymakers thought they could get away with it. Human rights law did not prevent such changes and those responsible had little or no contact with those affected so were able to ignore the impact.

There’s been a lot of moralising and not enough thinking about the real world consequences.