by Colin Yeo;
A couple under this degree of suspicion will be unable to live together in the UK and will either have to give up on the relationship or move abroad.
CHILDREN
If you are a parent, you are unlikely to want to voluntarily separate yourself from your children. For a country to succeed in attracting migrants like mature students and skilled workers, therefore, that country also needs to allow those migrants to bring their families with them. However, as we have seen with spouses and partners, every child permitted to enter the country is another person tipping the net migration scales further away from the target. The hostility of British politicians to migrant children is not new, though; the difficulties of bringing children to the United Kingdom pre-date the net migration target by over half a century. The current rules are outdated, they fail to put the best interests of children first, they unnecessarily separate children from their parents and they urgently need reform. Yet, while keeping migrants out continues to be the driving force of immigration policy, there is no incentive for the government to make any changes; the current rules are quite effective in keeping the numbers down, and not just the numbers of children. After all, the more children are denied entry, the more adult migrants will be encouraged to stay away too.
The basic approach followed by the UK rules is that, where one parent comes to the UK and the other remains alive and abroad, a non-British child will usually have to stay abroad. It does not matter if the parents agree that the child should relocate to the UK, or even whether the relocating parent has legal custody of the child; as far as the Home Office is concerned, it is not up to the parents.
There are only two exceptions. The first is called the ‘sole responsibility’ rule. Home Office guidance to officials defines this as meaning, ‘One parent has abdicated or abandoned parental responsibility, and the remaining parent is exercising sole control in setting and providing the day-to-day direction for the child’s welfare.’ Any decisions about the child’s upbringing must have been made under the sole direction of the applying parent ‘without the input of the other parent or any other person’.14 Where parents have split up and the parent remaining abroad has any level of involvement in the child’s upbringing at all, this makes it impossible for the child to accompany a parent relocating to the UK, even where that parent has sole legal custody and provides most or even all of the financial support for the child. If the parent remaining abroad is making maintenance payments but is unable or unwilling to look after the child, that is insufficient as far as the Home Office is concerned. Even where the parent abroad has entirely vanished, the rule remains very hard to meet when the active parent travels to the UK alone and then applies for the child to join him or her later. If a grandparent or relative provides care while the parent is gone, this will often doom an application to failure, irrespective of what the child or the parent thinks, because the Home Office will argue the parent is not solely responsible.
The second exemption is where there are ‘serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child’s care’. This test is even more vague than the first. Home Office guidance to officials is not much help either, but it does say that the ‘circumstances surrounding the child must be exceptional in relation to those of other children living in that country’.15 Whatever that means, it is clearly not an easy test to meet.
When Amber Murray, an American citizen, was appointed assistant professor in Geography at Oxford University in 2018, she was reported to be ‘ecstatic’. She has two daughters, aged four and nine, with her Cameroonian husband. Murray came to the UK ahead of her family to set up their home, but her application for her daughters was refused on the basis that they could stay with their father in Cameroon. The fact that the parents agreed in writing that the children should live with their mother was irrelevant to the visa officials deciding the application.16 The case of Dr Wesam Hassan was even worse. An Egyptian doctor starting a PhD at Oxford University, she had a nine-year-old son with her husband; he worked as a humanitarian coordinator for the UN in Yemen. However, Yemen was designated a ‘non-family station’ because of the conflict there, so no rational person could suggest the boy should live there with his father. Nevertheless, the application was refused.17
These cases are the tip of the iceberg and were only reported by journalists because of their post-Windrush new-found interest in immigration stories, and because those concerned fit the narrative of being ‘good migrants’. My colleagues and I deal with refusals like these day in, day out. Personally, I have lost count of the number of cases I have worked on where children were refused entry despite it being obviously in the child’s best interests to join their parent in the UK.
This wilful blindness to the welfare of children reflects a wider malaise at the Home Office. Officials are legally obliged, by Section 55 of the Borders, Citizenship and Immigration Act 2009, to consider the best interests of children within the United Kingdom. For the duty to protect and promote the best interests of children to really mean anything, officials would need to be able to exercise positive discretion based on individual assessments and move beyond the outcomes dictated by the unseeing rules. The reality is that the duty is routinely ignored. Refusal letters will sometimes pay lip service to the obligation, and Home Office policies do refer to it, but decisions rarely if ever turn on what would be best for the affected children.
In an inspection of Home Office treatment of child refugees in 2018, for example, inspectors looked at a sample of refusal letters. The inspectors found that these letters ‘simply stated that it was in the child’s best interests “to be reintegrated” into their own country’. It was noted that this appeared to be a ‘formula’ that was ‘drawn from a template’. In one of the twelve cases checked, the relevant paragraph was clearly a ‘cut and paste’ from another decision because it referred to the wrong country of origin.18 And this was not just a matter of form over substance. Of the twelve children concerned in these cases, none were recognised as a refugee by the Home Office, but nine had lodged appeals, six of which had been allowed by the time of the inspection report. One of the remaining three had been dismissed and two remained outstanding. The error rate in initial decision-making on child refugees was essentially 50 per cent, then. To put this into perspective, officials would get decisions right just as often if they randomly sorted cases into two different piles and designated one of them the ‘grant’ pile for no other reason that they preferred the look of it.
The failure to consider seriously the impact of immigration decisions on children is not limited to asylum casework. We have already looked at the impact of the 2012 Immigration Rules on families, where Skype families now exist because officials have repeatedly not considered the impact of their decisions on children. In these cases, the rules on money and income would seem to trump everything else. An inspection on decision-making under the family rules revealed that not one of a sample of thirty-seven applications for entry involving a child even referred once to the best interests of that child.19 The same inspection found that caseworkers had given specific consideration to the impact of refusal on the affected child in only one amongst a sample of twenty-one relevant refusals of further leave or settlement. In another examination of children’s citizenship applications, inspectors found that, in the twenty-eight refusal decisions made on the basis the child was not of sufficiently ‘good character’ (see Chapter 12) between July 2017 and August 2018, only two made reference to the best interests of the child concerned.20 Decisions to detain migrants who are parents are also often made without any reference to the best interests of affected children, leading in one example to a child nearly being adopted and an award of £50,000 compensation.21 Unsurprisingly given all of this, when the Children’s Commissioner for England and Wales reported in 2017 on the welfare of children subject to immigration control, she discovered that most found the immigration system ‘adversarial, confu
sing and stressful’, and their treatment at its hands ‘dehumanising and disrespectful’.22
The effect of an immigration decision on a child can be life-changing, yet for Home Office officials this is barely even an afterthought.
PARENTS AND GRANDPARENTS
The introduction of the minimum income requirement was not the only reform to the family immigration rules in 2012. Arguably the cruellest change was an alteration to the rules governing the entry of elderly parents, though in the sanitised and bureaucratic language of the Home Office, they are known as ‘Adult Dependent Relatives’. In effect, the changes to the rules made it all but impossible for elderly relatives to enter the UK. The year before the rules were changed, over 4,000 applications were made and 2,300 visas were issued under this route. These numbers were not particularly large. However, the year after the change, only 723 applications were made and just thirty-seven visas were issued. Those numbers were tiny.23
Those of us who are fortunate enough to have our parents live to a ripe old age will eventually need to look after them, as they once looked after us. Some dread the prospect, and no one claims that it is easy, but most accept that it is part of the cycle of life and are committed to doing the best job they can. Some, the so-called sandwich generation, will need to juggle care responsibilities for children as well as parents, and most will need to carry on working.
Carmen came to live in the UK in 2007 and became a full British citizen. Her mother, though, still lived alone in South Africa. Carmen watched with growing alarm and sadness as her mother’s health deteriorated, developing a degenerative back disease, osteoarthritis and fibromyalgia. By 2013, Carmen’s mother could barely bend down or lift objects, was unable to stand or walk for long periods, suffered constant pain and disrupted sleep and struggled to cook, clean or look after herself. She was also suffering from depression and anxiety. Carmen investigated how she could bring her mother to the UK to live with her so that she could properly look after her, but quickly found that the rules had changed in 2012 to make it virtually impossible for her mother to get a visa. Carmen would need to prove that her mother required ‘long-term personal care to perform everyday tasks’ because of ‘age, illness or disability’; that, even with Carmen’s assistance to find it, there was no adequate care available in the whole of South Africa; or that such care was unaffordable.24 The problem was that Carmen had a good job as an accountant in the UK, so could not claim that care was unaffordable. For he mother to obtain the visa, Carmen would somehow have to show that adequate care could not be provided anywhere in the whole of South Africa, for example through a care home or by paying a carer or team of carers privately. To do so would be to prove a negative, which any logistician will tell you is impossible.
Carmen was able to find a good team of lawyers, who will have advised her that it would be expensive to apply and that even if she did the chances of success were low. She decided to go ahead anyway; the application was refused. The Home Office rejection letter said she could not prove that care was not available in South Africa and that Carmen could leave the UK to look after her mother. The first judge to hear the appeal agreed with Carmen and overturned the decision but the Home Office then appealed. The second judge sided with the Home Office. In turn, Carmen appealed to the next highest court: the Court of Appeal. It is in the Court of Appeal’s judgment that we can read all about the case.25 Carmen’s appeal ultimately failed, leaving her to face the choice of going back to South Africa to look after her ailing mother or leaving her mother in the hands of private carers.
This is the cruel choice that many have been forced to make since the new rules were introduced in 2012. For partners, children and parents alike, refusing entry to one person, family member or not, is a contribution towards meeting the net migration target. Forcing their British or settled family member to leave is even better.
The standards applied by Home Office civil servants often lead to monstrous decisions. In another case I dealt with myself, the parent of a settled migrant had visited the UK repeatedly over the years but had not done so for some time. Her son knew that she was getting forgetful, but when she arrived, he realised that she was suffering from dementia and that it was growing rapidly worse. With several family members providing an admirable 24/7 regime of care in the UK, he assumed that the Home Office would see sense and allow her to live out her few remaining days with them in comfort and security. Not so. The application was refused, and it took an appeal to get the decision overturned. Another case I dealt with involved an autistic child applying to join her mother in the UK under the same set of rules that applies to parents. Again, the Home Office refused the application and it took an appeal for the decision to be reversed.
There is an unofficial presumption of refusal in family immigration cases and it leads to inhumane decisions. Each refusal is a contribution towards meeting the net migration target, though, and there is no sanction against those who make these cruel decisions when they are shown to be unlawful and are overturned on appeal.
FAMILY VISITS
If you migrate from one country to another, you leave many family members behind. You will also usually want your new family to stay in touch with your old family. Such links are important to many people in many cultures and are a way of reminding the next generation of their background and heritage. And the only real way for this education to happen is through face-to-face visits. You visit them, and they visit you. Such trips are particularly important for the key milestones in life, like births, graduations, marriages and funerals.
To come to the UK for a holiday from a country where low incomes are widespread and the population is mainly racialised, first you must apply for a visit visa. Without that visa, you will be refused boarding on the airplane in the first place, as otherwise the airline that allowed you to board will be fined £2,000. Visitors from rich, predominantly non-racialised countries do not require a visa before boarding; they can ask for the visa when they arrive at passport control. Around 150 million passengers travel through British ports and airports every year – a number that includes British citizens coming and going. This is a staggering volume of people for the immigration authorities to manage and it is one that increases year-on-year as more and more people travel around the world. Around 2.4 million of these passengers travel on a visit visa, the majority of which are intended for tourists who do not have a family link to the UK. Comparatively, only around 300,000 to 400,000 visas are issued specifically for the purpose of visiting family members.26
Where one of these family visit visas is refused, it will always be disappointing. A father might be unable to attend his son’s graduation, for example. A mother may not be present to help her daughter after the birth of her first child. An older brother may miss the funeral of a younger sister. A bride and groom may find that key family members are for ever absent from their wedding-day photographs.
To be fair, it is hard for immigration officials to get decisions right. They have a matter of minutes to look at an application and either grant or refuse. Does the person have a ‘good’ reason for visiting the UK? Are the documents forged? Have they got a job or family to return to? An unknown number of people come to the UK each year as visitors and then overstay their visas, failing to return home by the time it expires. Immigration officials assume that migrants from poor countries and those who are themselves poor, or those who are young and mobile or who lack ‘family ties’, are more likely to break the rules than established travellers with a history of complying with the rules in the past. The problem is that everyone starts out young and it is difficult to become an established traveller if you get refused a visa every time you try.
Since 2015 the Home Office has been using what it calls a ‘streaming tool’ to automate the risk analysis of visa applications, classifying them in a traffic light system as red, amber or green. An official still reviews all the applications but will apply differing levels of scrutiny according to the given colour. And it has an im
pact: less than 4 per cent of ‘green’ applications are refused compared to over 50 per cent of ‘red’ applications. But, as the chief inspector of borders and immigration has warned, there is a risk that the streaming tool leads to ‘confirmation bias’ on the part of officials, who might tend unconsciously to disregard any evidence that contradicts the streaming rating, and attach more weight to evidence that supports it. In effect, it becomes the ‘de facto decision-making tool’.27
Campaigners have asked the Home Office what information, evidence or other factors are taken into account by the algorithm behind the ‘streaming tool’ but the government has refused to say.28 The suspicion is that certain groups of people are disadvantaged based on generic markers such as age, nationality or whether they have travelled before. Another word for this approach, though, is ‘discrimination’. There is certainly evidence of different standards being applied. We might expect the refusal rate to be higher for countries with a lower GDP, whose citizens therefore have a greater incentive to break immigration laws after entry. However, we would also hope that the same standards of decision-making would apply no matter what country or region a person comes from. The chief inspector of borders and immigration found that while in 32 per cent of cases globally officials were failing properly to consider the evidence, that figure rose to 37 per cent for applications from Africa and to 50 per cent for applications from the Gulf, Iran and Pakistan.29 There can be no conceivable excuse for this.
This is why appeals matter. An appeal to an independent judge makes officials accountable and allows UK family members to attend court in an attempt to persuade the judge that the visit is genuine. Yet such appeals were abolished in 1993, and at the time a young shadow Home Secretary said this: