About Law Centre (NI)

Law Centre (NI) works to promote social justice and provides specialist legal services to advice organisations and disadvantaged individuals through our advice line and our casework services operating from our two regional offices in Northern Ireland.  The Law Centre provides advice, casework, training, information and policy services to over 400 member organisations in Northern Ireland. We are a primary provider of specialist immigration advice in Northern Ireland and facilitate the Immigration Practitioners’ Group consisting of lawyers and voluntary sector organisations.  We also provide advice and representation to employees on employment matters.

Introduction

The Law Centre is involved in a limited number of spouse/partner applications for leave to remain under the Immigration Rules. Although we advise on only a small number of ‘family cases’, we have a key interest in this area. The Law Centre currently provides regular updates on marriage/partner applications under both EEA and domestic law through its Encyclopedia of Rights resource.[1] In addition, the Law Centre has a particular interest in marriage applications. We lodged the case of O’Donoghue & Others v UK[2], which was heard by Strasbourg in December 2010. We welcomed the judgment whereby the Court held that there is no justification whatsoever for imposing a blanket prohibition based only on the individual’s immigration situation.

The Law Centre also as a strategic interest in the development of immigration policy, both at national and regional levels. The Law Centre is a member of the recently established Regional Migration Strategic Partnership in Northern Ireland.

General comments

The Law Centre is a member of Immigration Lawyers Practitioners’ Association (ILPA) and has had sight of the ILPA draft response. The Law Centre is in agreement with the broad thrust of the ILPA submission and indeed this response draws extensively on the ILPA draft response.

The UKBA has stated that it ‘will consider whether transitional arrangements should apply’ in respect of settlement.[3] We would argue that the UKBA is required to put transitional provisions into place. If the UKBA has set out a path to settlement, then those already on that path should be allowed to complete it in the anticipated manner. We wish to highlight the case of HSMP Forum Ltd[4] where a category of migrant workers successfully challenged a retrospective policy. It is in the interests of clarity and fairness that transitional arrangements are in place and that measures are not applied retrospectively.

Response to questions

Question 1: Should we seek to define more clearly what constitutes a genuine and continuing relationship, marriage or partnership, for the purposes of the Immigration Rules? If yes, please make suggestions as to how we should do this.

No. We do not think this is necessary. We agree that a ‘grant of leave must be based on a genuine and continuing relationship, freely entered into by both parties and not a marriage/civil partnership of convenience’.[5] However, the Immigration Rules for spouses and civil partners already require that ‘each of the parties intends to live permanently with the other as his or her spouse or civil partner and the marriage or civil partnership is subsisting’.[6] Likewise, the Entry Clearance Guidance confirms that partners must have demonstrated a clear commitment of an intention to live permanently together.[7] Moreover, the concept of a ‘genuine relationship’ has been fleshed out in case law, namely GA(Ghana),[8] which introduces a ‘subsisting’ requirement and which also gives the decision-maker ample scope for considering the relationship in the ‘broadest sense’. GA(Ghana) includes a robust test and, as a reported case, binds all Tribunal judges.

In light of existing case law, the Immigration Rules and the Entry Clearance Guidance, the Law Centre does not think any further amendments are necessary. The Law Centre would, however, welcome clearer guidance on application forms which would assist applicants to ensure that they are aware of evidential requirements.

UKBA has suggested introducing ‘indicators’, which would assist the decision-maker identify marriages of convenience. These would include: the age of the sponsor and the applicant; the nature of the wedding ceremony (for example, if there were very few or no guests and whether the couple eloped); whether the sponsor has previously sponsored a marriage or marriage application; and whether the applicant has a compliant history of visiting or living in the UK.[9] However, it is the Law Centre’s view that each case should be considered on its individual merits rather than through reliance on ‘indicators’.

We wish to point out that the UKBA already has powers to consider such matters in detail and indeed can conduct interviews with prospective marriage applicants.

2. Would an ‘attachment to the UK’ requirement, along the lines of the attachment requirement operated in Denmark:

a) Support better integration?

No

b) Help safeguard against sham marriage?

No

c) Help safeguard against forced marriage?

No.

The Danish test requires that both parties have a combined attachment to Denmark that is greater than their combined attachment to any other country.[10] In order to meet the attachment requirement, the applicant for a marriage visa must have visited Denmark at least twice and the sponsor must have resided legally in Denmark for 15 years. The attachment requirement is not applicable if either party has held Danish citizenship or resided legally in Denmark for at least 28 years. This could well have the effect of causing resentment among the immigrant community, which is clearly contrary to the aim of promoting integration. Moreover, the UKBA has not provided any justification as to how the introduction of this provision will help ‘tackle abuse, promote integration or reduce burdens on the tax payer’,[11] which are the key aims of the consultation document.

Question 3: Should we introduce a minimum income threshold for sponsoring a spouse or partner to come to or remain in the UK?

No.  There is no need to ‘introduce’ a minimum income threshold for sponsoring a spouse or partner to come to or remain in the UK because the Immigration Rules already require that applicants can be maintained and accommodated without recourse to public funds.[12] Applicants will only be successful if they can demonstrate that they will not have recourse to public funds. This requirement also extends into the probationary period; if an applicant were to obtain public funds, she could be refused indefinite leave at the end of the probationary period.

Meeting the ‘maintenance requirement’ requires an applicant to show maintenance equal to, or in excess of, the funds available to an equivalent British family relying upon income support.

We note that significant consideration is given to raising the maintenance requirement.

However, we would argue that income support should remain the test. This view is reflected in caselaw. In KA and Others (Adequacy of maintenance) Pakistan an Immigration Judge held:

“There is a good reason for using the levels of income support as a test. The reason is that income support is the level of income provided by the United Kingdom government to those who have no other source of income.” [13]   

We cannot support the suggestion that the proposed income threshold should be higher than income support in order to ensure that ‘spouses and partners are supported at a reasonable level’ so as to enable them to participate in everyday life and integrate in British society.[14] If Income Support is not considered a ‘reasonable level’, then it must follow that Income Support is too low a payment. In this instance, the government should consider raising the level of welfare benefits. This is not the case: the current welfare reform programme may result in many welfare claimants experiencing a reduction in income.

Question 4: Should there be scope to require those sponsoring family migrants to provide a local authority certificate confirming their housing will not be overcrowded, where they cannot otherwise provide documentation to evidence this?

This question does not lend itself to a yes/no answer.

Sponsors can already ask their local authority to visit their home and certify in writing that it does not reach the definition of overcrowding. If there is to be a greater use of ‘housing certificates’, then local authorities must be consulted on this and confirm that they will have capacity to provide timely and accessible housing certificates. In Northern Ireland, this is likely to fall to the Northern Ireland Housing Executive. It is essential that the UKBA does not introduce a requirement that relies on a third party that is unwilling or unable to provide assistance within a reasonable time.

Unfortunately this has already happened in Northern Ireland: applicants living in Northern Ireland currently find it extremely difficult to meet language requirements due to the lack of accessibility for English language tests. The Law Centre has raised this with the UKBA on a number of instances including in the recent UKBA consultation on Tier 4 settlement:

Relevant here is access to English language tests. The Belfast Migrant Centre and Law Centre (NI) have identified a particular problem in Northern Ireland, where, due to the eligibility requirements for English language tests imposed by test providers and the lack of tests on offer, it is extremely difficult for some categories of migrants to meet current English language requirements.[15] As a result, applicants may be compelled to travel to Great Britain. We conclude that the government needs to take more care when designing immigration policy to ensure that applicants can actually meet the requirements.[16]

The paper also suggests that the local authority is asked to report to the UKBA any suspicions that a couple is not residing together when it goes to make a home visit to provide a housing certificate.[17] The Law Centre is extremely concerned by this provision and by the lack of transparency about what is proposed. It is essential that the UKBA provides far greater detail on what powers such individuals would have and what criteria they would use on which to base their “suspicions”.

Question 5: Should we extend the probationary period before spouses and partners can apply for settlement (permanent residence) in the UK from the current 2 years to 5 years?

No.

The UKBA argues that extending the probationary period for settlement of spouses/partners from 2 years to 5 years will be ‘in line with other routes’.[18] However, family migration and economic are different and the UKBA has not provided any policy explanation as to whether it is necessary or desirable to make the probationary period for partners equal to those on the points based system.

Currently, those who have lived abroad with their partner for four years prior to moving to the UK are entitled to apply for settlement immediately. The introduction of the five-year probationary period would seem particularly disproportionate for this category.

The UKBA has provided statistics to justify the proposal, indicating that 10% of marriages end in divorce after 5 years compared to 3% after 2 years.[19] The fact that a minority of marriages end in divorce does not, of course, mean that the marriage was one of convenience. The objective appears to be not to let individuals remain in the UK if their marriage breaks down within the 5 years probationary period. We are concerned that this proposal makes no reference to UKBA’s duties to children under section 55.[20] How, for example, will a child’s right of access to both parents be supported if the marriage breaks down during the probationary period?

If the UKBA does proceed with this proposal, it is essential that an exception applies to victims of domestic violence so as to ensure that the victim is not compelled to stay in a relationship with an abusive partner.

Question 6: Should spouses and partners who have been married or in a relationship for at least 4 years before entering the UK, be required to complete a 5-year probationary period before they can apply for settlement (permanent residence)?

No

We oppose the proposal to end the grant of indefinite leave to enter for those in relationships of 4 years or longer outside the UK.

If a couple has already lived together for 4 years outside of the UK, there is no need to introduce further tests of ‘genuineness’; in order to have been granted settlement, these couples have already had to show proof of cohabitation.

Question 7: Should spouses and partners applying for settlement (permanent residence) in the UK be required to understand everyday English?

No.

The Law Centre agrees that there are benefits in migrants being able to speak English[21] but is concerned that there are no proposals to ensure that migrants have easy, affordable access to UKBA-approved language courses. It is not acceptable to introduce a requirement without first ensuring that it can be met. We wish to reiterate that meeting the existing ESOL language requirements is already a problem for applicants in Northern Ireland (see response to question 4, above). Until this problem is resolved, we do not feel we can consider the introduction of any additional English language requirements.

Victims of violence may be those with the least access to the means to integrate and learn English. Increasing the level of English required may mean they remain indefinitely on limited leave to remain, believing they remain under the control of their abusive partners. If the UKBA proceeds with this provision, we would urge it to introduce an exception for victims of domestic violence.

Question 8: Which of the following English language skills should we test?

If the UKBA proceeds with this provision, we would suggest that only ‘speaking’ and ‘listening’ skills are tested.

TACKLING SHAM MARRIAGE

General issue

As a general point, we wish to stress that UKBA should not put restrictions on marriage which are unlawful. The case of Baiai[22] held that it is unlawful to put restrictions on the right to marry solely on the basis of immigration rules. This was confirmed in O’Donoghue & others v United Kingdom.[23]

However, the UKBA refers to a sham marriage as one involving a:

Non-EEA national without leave to remain in the UK or whose leave is about to expire”[24]

The Law Centre’s firm view is that immigration status should not be treated as an indicator of a sham marriage. Lack of immigration status or short-term immigration status does not (and should not) create a presumption of ‘sham marriage’. In the same paragraph, the UKBA suggests that a sham marriage occurs when:

The marriage or civil partnership takes place solely as a basis for trying to enable [the foreign national’] to enter, remain in or extend their leave in the UK. There is no subsisting relationship and the parties do not intend to live together permanently if at all.[25]

The Law Centre believes that this is the correct definition of sham marriage and we would ask the UKBA to adopt this definition throughout its work.

Question 9: Should we (in certain circumstances) combine some of the roles of registration officers in England and Wales and the UK Border Agency as a way of combating sham marriage?

No.

The Law Centre firmly opposes any increase in enforcement-related powers of persons who are not officers of UKBA. The paper acknowledges that:

It is not the role of the local registration service to enforce the immigration laws: that is the matter for the UKBA.[26]

The Law Centre agrees with this statement. Despite this acknowledgement, the paper goes on to suggest ways in which registrars could become further involved in enforcing immigration laws. This makes little sense.

Registrars are currently under a duty to report suspicious marriages or civil partnerships.[27] The consultation document cites numerous examples of registrars reporting cases to UKBA which suggests that these powers are currently utilized and are working. We not think the UKBA has made the case for extending these powers. Indeed, the powers for dealing with sham marriages are already considerably wide – criminal and immigration offences may apply to both those who enter into sham marriages and those who facilitate them.[28]

Question 10: Should more documentation be required of foreign nationals wishing to marry in England and Wales to establish their entitlement to do so?

No.

This proposal would require foreign nationals wishing to marry in the UK to obtain a ‘certificate of no impediment’ from their embassy or high commission.  

The Baiai case held it to be unlawful to require a person to have leave in the UK before being allowed to marry. However, this proposal would appear to undermine the Baiai principle by introducing a requirement that some foreign nationals may not be able to meet.  It is not reasonable, for example, to expect an asylum seeker or refugee to contact their own embassy or high commission. Therefore, if this proposal does proceed, a range of exceptions need to be put in to place. It is our view that the introduction of a requirement with which individuals cannot apply with for reasons outside of their control, would lead to a legal challenge in a similar vein as Baiai.

Question 11: Should some couples including a non-EEA national marrying in England and Wales be required to attend an interview with the UK Border Agency during the time between giving notice of their intention to marry and being granted authority to do so?

No.  It is the current position that where there is evidence of a marriage of convenience, no immigration status will be granted. It is the obtaining of status – and not the marriage itself - that should be UKBA’s concern.

Question 12: Should ‘sham’ be a lawful impediment to marriage in England and Wales?

No. The UKBA already has sufficient powers to ensure that a ‘sham marriages’ involving a foreign national cannot lead to the grant of immigration status to the foreign national on the basis of that marriage. This is the current legal position in both domestic and EU law. In addition to refusing to grant leave, the UKBA in conjunction with the criminal justice system, can pursue action on the basis of the offences committed itself.

In our view, the UKBA does not therefore need to concern itself with preventing the marriage from taking place.

Question 13: Should the authorities have the power in England and Wales to delay a marriage from taking place where ‘sham’ is suspected?

No.  See response to question 11, above.  Where there is evidence of a marriage of convenience, no immigration status will be granted. We do not think there is a need for additional powers, such as the power to delay a marriage taking place.

Question 14: Should local authorities in England and Wales that have met high standards in countering sham marriage, be given greater flexibility and revenue raising powers in respect of civil marriage?

No.  We are concerned by the proposals which refer to the giving of “greater flexibility and revenue-raising powers” to local authorities whose registration services “meet high standards of practice in helping to counter sham marriage” [29]  segueing into the possibility of a “highly trusted Registrar” status.  These incentives may lead to an increase of referrals of “sham” marriages on the basis of immigration status alone or other factors such as nationality or age.

Question 15: Should there be restrictions on those sponsored here as a spouse or partner sponsoring another spouse or partner within 5 years of being granted settlement in the UK?

No.  The Law Centre would oppose the introduction of a blanket ban for a blanket period. There are many reasons why a marriage may break down, which are not the fault of the person who was sponsored and to force, for example, a woman who has suffered domestic violence, or a woman deserted by her settled husband because he found a new settled partner to refrain from enjoying a new marriage/partnership for an artificial period, is unjustifiable.

Question 16: If someone is found to be a serial sponsor abusing the process, or is convicted of bigamy or an offence associated with sham marriage, should they be banned from acting as any form of immigration sponsor for up to 10 years?

We are concerned by the use of the phrase ‘serial sponsor’, if this label derives from a UKBA assessment rather than from a court conviction. 

Question 17: Should we provide scope for marriage-based leave to remain applications to be counter-signed by a solicitor or regulated immigration adviser, as a means of confirming some of the information they contain?

No.  We do not think this provision is necessary.

Question 18: Should there be scope for local authorities to provide a charged service for checking leave to remain applications, including those based on marriage, as they can do for nationality and settlement applications?

No.   The existing ‘checking service’ for nationality and settlement applicants is precisely that: a means by which a civil servant can check that all necessary information has been provided and can also verify that she has had sight of documents. This is a useful service, not least because it can protect the applicant from losing the full application fee for a relatively minor mistake and also because it gives the applicant an option of not sending away important documents in the post.  However, it appears that this proposal is much more than a ‘checking service’ as it is instead presented as a means to help ‘tackle abuse’. In our view it is disingenuous to mask potential enforcement opportunities behind (a paid for) customer service.

Question 19: If someone is convicted of domestic violence, or has breached or been named the respondent of a Forced Marriage Protection Order, should they be banned from acting as any form of immigration sponsor for up to 10 years?

No comment.

Question 20: If the sponsor is a person with a learning disability or someone from another particularly vulnerable group, should social services departments in England be asked to assess their capacity to consent to marriage?

The principle that persons should be assumed to enjoy decision-making capacity should first apply.  There should be no assumption that a person with a learning disability does not have capacity to consent.

However, in circumstances where there are concerns about a person’s capacity to make a decision about their marriage, then an assessment of capacity may be a useful safeguarding measure to protect against the potential exploitation of vulnerable people.  Any assessment of capacity should be made by an independent assessor and there should be an appeal mechanism.  It may not be appropriate for an assessment to be made by social workers. We would be concerned about the potential of conflicts of interests arising and would be worried about the potential of damaging the relationship between the social worker and the applicant. 

This provision would need to be handled extremely carefully as it seems to engage the Convention on the Rights of Persons with Disabilities in particular Article 23 which requires states to eliminate discrimination relating to marriage, family and personal relations.

Question 21: Should there be a minimum income threshold for sponsoring other family members coming to the UK?

No comment.

We do not understand this question. Applicants already meet such requirements when sponsoring other family members coming to the UK through the maintenance and accommodation test. Therefore a minimum income threshold is already in place.

On a related issue, the Law Centre would propose that the Home Office reinstates the previous immigration category of “retired persons of independent means”.  The revocation of this rule a few years ago has created the anomaly that some elderly parents, whose only offspring to whom they can turn for moral, emotional and physical support in their old age, live in the United Kingdom but they are not able to apply to settle with them here, notwithstanding substantial personal income, because they cannot demonstrate themselves to be “wholly or mainly dependent” [in a financial sense] on their children in the United Kingdom.  It is unclear why the UK seems to insist on financial dependency here whereas one of the main themes of this consultation document is the importance of immigrants having adequate resources so as not to become dependent on the welfare state.

Question 22: Should adult dependants and dependants aged 65 or over complete a 5-year probationary period before they can apply for settlement (permanent residence) in the UK?

No.

This proposal, whereby adult and elderly dependents aged 65 years or over should be granted a five year probationary period rather than indefinite leave to remain[30] strikes us as being unduly harsh. We question whether  UKBA is genuinely proposing that, at the end of that five year period, it would be prepared to remove or deport individuals most of whom, by that time, would be in their seventies. 

Question 23: Should we keep the age threshold for elderly dependants in line with the state pension age?

No comment.

Question 24: Should we look at whether there are other ways of parents or grandparents aged 65 or over being supported by their relative in the UK short of them settling here? If yes, please make suggestions.

No.

The proposal that “we look at whether there are other ways of parents or grandparents aged 65 or over being supported by their relatives in the UK short of them settling here”[31] does not make sense. For a person to qualify for settlement as an elderly person, s/he must already demonstrate that s/he is wholly or mainly supported by relatives in the United Kingdom.  The rule allowing her to join her children in the United Kingdom reflects a basic principle of family life that it is appropriate for children to look after their elderly parents.  The support such children afford is not only financial support but the emotional and physical support the suggestion in the consultation document is that this kind of support is replaceable - e.g. through money transfers or Skype communication – misses the point.

Question 25: Should there be any change to the length of leave granted to dependants nearing their 18th birthday? If yes, please make suggestions.

No.

There are two proposals here. The first proposal is to lower the age eligibility of a child dependant be lowered to 17.5 years at the time of the application so that they enter the UK before their eighteenth birthday.[32]    However, there are many factors which determine how quickly entry is achieved after application, including the speed and efficiency of given entry clearance posts. The current rule, whereby the child must be 18 years at the time of the application, is clear and predictable. We see no need for it to be changed.

The second proposal is that for children nearing their 18^th birthday, indefinite leave will not be granted but rather a finite period of leave since, “once they reach the age of 18, they will be able to apply for leave to remain in the UK in their own right”.[33] This suggests that such children are likely to have some other basis on which they may remain with their parent(s) in this country, which clearly will not be the case in every instance.  The implementation of this proposal could lead to some distressing situations whereby some young adults (18 years) are subject to enforcement action.

Question 26: Should dependants aged 16 or 17 and adult dependants aged under 65 be required to speak and understand basic English before being granted entry to or leave to remain in the UK?

No.

See response to question 27

Question 27: Should adult dependants aged under 65 be required to understand everyday English before being granted settlement (permanent residence) in the UK?

No.

The imposition of an English language requirement on children aged 16 or 17 or on adult dependants under 65 fails to take into account the basic principle inherent in these already stringent rules that, where the individual meets the specified requirements, it is right and proper that the families concerned be reunited in the United Kingdom.  It is an arbitrary and unfair distinction that 16 and 17 year olds, as opposed to 15 year olds, and that 64 year olds, as opposed to 65 year olds, must meet such English language requirements.  This situation differs from that of married couples where a couple takes the decision to marry, knowing of the English language requirement when taking that decision.  It is unfair and unreasonable that hard working individuals who have chosen to make their lives in this country should be precluded from having with them their dependent children and elderly relatives, even though they can support them, simply because they have not had the opportunity to learn English beforehand.

The suggestion that adults aged under 65 should meet a further higher English language requirement eventually to be granted settlement (in the model where settlement follows only after five years[34]) raises similar concerns. 

We welcome the recognition that an exemption from this requirement is necessary for those with a permanent disability which prevents them from learning English. There also seems to be an additional exemption proposed for ‘those who can evidence they have made a serious effort to reach the required level but have failed to do so’.[35] While we welcome there being exemptions in place, it is unclear what a ‘serious effort’ would mean in practice. Clarity is therefore required.

We have already highlighted the acute difficulties faced by applicants living in Northern Ireland in meeting current English requirements. The UKBA should carefully check whether requirements can be met in practice before they are introduced. If the requirements cannot be met in a particular country for whatever reason then an exemption needs to be in place. We believe that it is incumbent on the UKBA to check whether, practically speaking, requirements can be met before such requirements are made law.

Question 28: Should we increase the probationary period before settlement (permanent residence) in the UK for points-based system dependants from 2 years to 5 years?

No.

We argued in a recent consultation that the probationary period for points-based system dependants should not be increased.[36]

Whatever the outcome of this consultation, we think that dependents must be able to apply for leave in line with the principle applicant.

Question 29: Should only time spent in the UK on a route to settlement count towards the 5-year probationary period for points-based dependants?

No.

See Law Centre response to recent UKBA employment-related settlement consultation.[37]

Question 30: Should we require points-based system dependants to understand everyday English before being granted settlement (permanent residence) in the UK?

No.

See Law Centre response to recent UKBA employment-related settlement consultation.[38]

Question 31: In what other ways could the UK Border Agency improve the family visit visa application process, in order to reduce the number of appeals?

See response to question 32.

Question 32: Beyond race discrimination and ECHR grounds, are there other circumstances in which a family visit visa appeal right should be retained? If so, please specify.

Questions 31 and 32 do not lend themselves to yes or no answer.

We welcome UKBA’s acknowledgment that family visits are:

A means of maintaining family links and of enabling family members living abroad to participate in important occasions in the UK such as birth, weddings and funerals. Such visits and associated tourism also bring economic benefits to the UK.[39]

However, we strongly oppose the proposal to remove the right of appeal, and do not accept the justification given.

The paper justifies the proposal on the basis of the number of successful appeals and the cost to the taxpayer. It makes no attempt whatsoever to acknowledge that the reason there are so many successful appeals is because of very serious failings by the entry clearance officers, failings which have been independently confirmed by the UK Border Agency’s chief inspector as not being compliant with UKBA’s duties under the Race Relations Act 1976.[40]

The removal of appeal rights would allow poor decision-making to continue without redress, thereby weakening the rule of law. This proposal is unsustainable.

We make three proposals as to how the UKBA can ensure that there are fewer appeals without removing the right of appeal:

1. Improved decision making at Entry Clearance posts
2. Clearer guidance
3. More requests from Entry Clearance Officers where further information is required.

-   Improved decision making

The largest number of refusals of family visit visas is to Pakistani nationals.[41] It is useful, therefore, to look at the quality of decision making for visa applications by Pakistani nationals.

In his report concerning operations in Abu Dhabi and Islamabad published in November 2010[42], the Independent Chief Inspector of the UK Border Agency found that Entry Clearance staff were applying higher evidential requirements for entry to the UK for customers from Pakistan than they were from members of the Gulf-Cooperation Council. The Inspector was unaware of any ministerial authorization that would give Officers an exemption under Section 19D of the Race Relations Act 1976 (as amended), which would allow discrimination in relation to particular nationalities.

Despite this report in late 2010 that Pakistani nationals, those most likely to be refused visit visas, are being racially discriminated against in terms of evidence, UKBA in this paper is maintaining that applicants are ‘misusing’ the system by failing to submit all the necessary information with the application.[43] This is an unsustainable position.

We do not accept that an applicant would willingly submit a visa application that does not contain the necessary evidence because they can just go forward with an appeal if refused. Applicants want the visa to be granted first time and will make efforts to make it right the first time if they can. A consequence of a refused application is that the applicant may miss the ‘important occasion[44]’ in the UK, even if the appeal is ultimately successful.

-       Clearer Guidance

The system can be improved if clearer guidance is given to family visitors.

In his report on a short notice inspection in Istanbul published in March 2011, the Independent Chief Inspector of the UK Border Agency was clear that the ‘lack of clarity in regards to evidential requirements has been a key feature of recent overseas inspections’. [45] 

Clearer guidance is essential. If applicants have a better idea of evidence is required from them, their initial applications are more likely to contain all the necessary evidence. This could well reduce the number of appeals.

-  More requests from Entry Clearance Officers where further information is required

We would suggest that Entry Clearance Officers make more efforts to contact family visit visa applicants to request information they deem necessary rather than simply refuse the application. 

Question 33: Should we prevent family visitors switching into the family route as a dependent relative while in the UK?

No.

No, there are often strong reasons why people need to change their status in the UK. The UKBA has not offered adequate justification for this proposed change.

Note on refugee family reunion

The consultation document makes reference to refugee family reunion but no changes are proposed. We would anticipate that the UKBA would consult before introducing changes to refugee family reunion.

We also wish to highlight the problem that some refugees experience when applying for family reunion given that the lack of visa services in some countries. The Law Centre has recently represented an Iraqi refugee whose wife had to travel to Jordan in order to apply for leave under the family reunion provisions. This proved to be a difficult, lengthy and expensive process for the couple. Refugees have an entitlement to be reunited with family members and we would urge the UKBA to consider whether this right is always accessible.

ECHR ARTICLE 8

Question 34: Should the requirements we put in place for family migrants reflect a balance between Article 8 rights and the wider public interest in controlling immigration? Please comment further if you wish.

Yes.

Requirements for family migrants should of course reflect a balance between Article 8 rights and the wider public interest. Indeed, this is required under the ECHR.

Question 35: If a foreign national with family here has shown a serious disregard for UK laws, should we be able to remove them from the UK? Please comment further if you wish.

No.

The UKBA should not automatically be able to remove such a person. However, the UKBA should have powers to consider deportation in such instances in accordance with the ECHR. This is already the case.

Question 36: If a foreign national has established a family life in the UK without an entitlement to be here, is it appropriate to expect them to choose between separation from their UK-based spouse or partner or continuing their family life together overseas? Please comment further if you wish.

The ECHR applies here.

IN GENERAL

Question 37: What more can be done to prevent and tackle abuse of the family route, particularly sham marriage and forced marriage?

No comment.

Question 38: What more can be done to promote the integration of family migrants?

Integration is a complex issue and includes many factors. If the UK is serious about promoting integration then we would urge it to consider taking some of the following steps:

 

-  Access to free, accredited English languages classes. These could be means-tested

-  Lifting the current restrictions placed on Romanian and Bulgarian nationals under the Worker Authorization Scheme.

-  Replacing ‘work permit’ visas (whereby employment is tied to a single employer) with a more flexible work visa. This would help reduce exploitation.

- Review settlement requirements for victims of domestic violence (including the requirement to be free from unspent convictions)

- Review the restrictive No Recourse to Public Funds measure, etc.

 

Question 39: What more can be done to reduce burdens on the taxpayer from family migration?

Remove restrictions on access to work for dependants.

Question 40: How should we strike a balance between the individual’s right under ECHR Article 8 to respect for private and family life and the wider public interest in protecting the public and controlling immigration?

No comment.

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