by Colin Yeo;
When a right of appeal is removed, what is removed is a valuable and necessary constraint on those who exercise original jurisdiction. That is true not merely of immigration officers but of anybody. The immigration officer who knows that his decision may be subject to appeal is likely to be a good deal more circumspect, careful and even handed that the officer who knows that his power of decision is absolute. That is simply, I fear, a matter of human nature, quite apart from anything else.30
The speaker’s name was Tony Blair and the right of appeal was duly restored by the New Labour government in 2000. The success rate for family visit appeals fluctuated over the following years, but in 2010 it was as high as 45 per cent.31 The right of appeal was nevertheless abolished again, this time by Theresa May in 2013. Since then, there has been no proper accountability for immigration officials and the refusal rate is thought to have crept upwards.32 An unknown number of wedding guests, mourners, proud parents and grandparents have wrongly been refused entry with no right of appeal. And once their passport is marked with a visa refusal, the chances of a future visa application being approved falls dramatically. In effect, a refusal of a visit visa is often a permanent bar on entry.
FRIENDSHIPS AND PRIVATE LIFE
It will come as no surprise that a government that attaches so little value to family life attaches even less weight to friendships and other community ties. In parallel to the reform of the family rules in 2012, the rules on other ties to the United Kingdom were also toughened up. This was presented at the time as targeting foreign criminals, who were supposedly abusing Article Eight of the European Convention on Human Rights to remain in the UK on the most tenuous of grounds. This right protects a person’s private and family life, but it is what is called a qualified right, meaning that it is not absolute and has to be balanced against other considerations. As we will see in Chapter 10, a notorious cat story that came to symbolise this supposed abuse of rights was in fact untrue. Migrants with deep-rooted ties to the United Kingdom have been caught up in the reforms and even those born in the United Kingdom or brought here as children find they do not qualify. Decisions in this field of work can seem very harsh indeed, with people who are British in the eyes of everyone except the law finding they have to leave everything they know behind and build a new life for themselves in a foreign country they barely recognise.
There are five main private life routes set out in the rules, based on ties to the UK. The first is the ten-year route to permanent settlement, which requires ten continuous years of lawful residence. Any gaps between visas, for example those caused by a slightly late visa renewal application that is subsequently granted, will be pounced on by officials to justify refusal. The second is the thirty-year route, which is the only route to becoming permanently settled if so much as one single day of a person’s stay has been unlawful. On this route, the person is eligible to apply for temporary status after twenty years, and that status then has to be renewed every two and a half years for a further ten years until the person can finally apply for permanent settlement. The qualifying period was fourteen years in total until 2012. Whether you overlook a visa extension deadline or you smuggle yourself into the country illegally and remain hidden for twenty years, you have been unlawfully resident for at least one day and therefore this is the route for you. The third option applies to children who have been resident in the UK for at least seven years and where the Home Office considers it unreasonable for the child to leave the country. The rub, however, is in the second leg of this test: officials almost always consider it reasonable for the child to leave, no matter how long the child has lived in the country. The fourth route is for young people between the ages of nineteen and twenty-five who have spent at least half of their life in the country. A young person aged twenty-four who was brought to the United Kingdom at thirteen and was schooled and brought up in the UK, all of whose friends are here and who has little memory of her country of nationality, will be refused because the maths says that just over half of her life has been spent abroad. The fifth and final route is for any migrant over the age of eighteen where there are ‘significant obstacles to the applicant’s integration into the country to which he would have to go if required to leave’. This test is interpreted by immigration officials as insurmountable for the applicant.
In one of my cases, for example, a 44-year-old Lebanese man with Down’s syndrome had lived happily in the United Kingdom for seventeen years, cared for and supported by his brothers, who unlike him had lawful status. His parents in Lebanon had died in the meantime. Despite the obvious difficulties someone with Down’s syndrome would face living independently in what had become to him an unknown country, the Home Office refused his application to remain. Instead, he could reintegrate in Lebanon, they said, with his brothers sending him money from the UK.33 In common with the many other cases attracting negative publicity, the Home Office eventually reversed the decision; but only because of the publicity.
The cost of the applications is huge. For some it is simply unattainable. And as we saw in the previous chapter, for those who do somehow find the money, it can still be financially and emotionally crippling.
SIDESTEPPING THE RULES
These inflexible rules on family and community ties were originally introduced in order to relieve officials of the moral dilemmas immigration cases invariably involve. It is one thing for a politician to say that it is in the public interest for immigration to be lower, or that economic considerations should trump moral or social ones. It is quite another for an official to try to balance these abstract concepts against the very real and immediate impact that their decision has on the life of a migrant and his or her family members. Ministers were unhappy with the outcome of individual balancing exercises undertaken by officials and judges – too many cases were succeeding in their view – and their response was to attempt to pseudo-automate the decision-making process through the reforms of 2012. In common with the changes to economic migration routes that we will turn to in Chapter 7, the effect of purging human discretion from migration decisions was also to eliminate common sense.
A telling anecdote emerged from the Conservative Party conference in 2019.34 Former immigration minister Mark Harper recounted an example of a person abroad wanting to visit a dying relative in the UK. The case had been referred to him because, in his view, it was impossible for immigration officials to make judgement calls on supposedly complex cases like this. He instructed officials to grant the visa. But actually, it is perfectly possible for officials to make judgement calls; this was not really a complex case and, as the Institute for Government has observed, there is no other department in which the minister would be expected to make day-to-day caseworking decisions on, for example, whether to terminate a person’s benefits.35 It is illuminating that in cases like this one, which are referred to ministers due to media attention, the response is almost invariably to grant the requested visa. Faced with the real, human consequences of the rules they made, ministers often decline to follow them.
Theresa May was never explicit about what she expected those affected by the family immigration reforms of 2012 to do. Should they work harder or get higher-paying jobs in order to meet the rules? With 40 per cent of the working population ineligible to sponsor a spouse or partner from abroad, the rules of capitalism suggest this was never going to be possible for everyone. Blaming the poor for their own poverty has always been some people’s response. Or should British citizens avoid falling in love with foreign nationals in the first place, or perhaps terminate such relationships before they become serious? This seems unrealistic at best. At worst, it looks like an attempt to preserve the existing ethnic composition of the population, at least amongst the poor. In any event, there were many family units already living together in 2012, who would inevitably be affected. Should they move abroad into exile? Forcing British citizens to leave their own country as the price of keeping their family together certainly seems harsh, and the impact on the affected B
ritish children even more so. Or should families just dissolve, forcing couples to split up and children be brought up by just one of their parents? Even the most ardent anti-immigration advocate would surely agree that this is an unacceptable outcome.
My experience of working with those affected by these harsh rules is that such families do not simply accept their own annihilation. They fight and they struggle to stay together. It is incredibly stressful, it can be very expensive and it is not guaranteed to succeed; those who do stay in the UK despite being unable to meet the rules always live in fear of final refusal and a dawn raid.
Some have tried to sidestep the rules. One path is to rely on the various ‘exceptional circumstance’ exemptions in the Immigration Rules themselves. It was almost impossible to succeed on these very narrow grounds until the Supreme Court upheld the main rules in a case in 2017 but forced the Home Office to widen the exceptions.36 Even now, though, if a couple is childless it remains virtually impossible to succeed, and even cases that do involve children are still refused.
Another route is to move to another European Union country with family members, live there a while and then return to the United Kingdom relying on family-friendly EU law rules. This is sometimes known as the Surinder Singh route, after a European Court of Justice case of that name from 1992.37 The Home Office considers this a loophole and has repeatedly introduced new rules and regulations to prevent families making use of it. It has been the only way for some families to live together in the United Kingdom, but it will disappear, along with the other free movement rights of British citizens, at the end of the Brexit transition period when the UK finally leaves EU law behind.
The Conservative Party likes to present itself as the champion of communities and families. However, the rules introduced in 2012 tear both apart. Back in 2010, while still Leader of the Opposition, David Cameron said that he wanted his government to be ‘the most family-friendly government we’ve ever had in this country and that is about everything we do to support families and it’s about supporting every sort of family’.38 But clearly he did not mean families that include a foreign national.
NOTES
1 ‘Impact assessment: Changes to Family Migration Routes’, Home Office, 12 June 2012.
2 The precise level of savings necessary is calculated using a complex formula of (X multiplied by 2.5) plus £16,000, where X is the difference between provable, eligible income and £18,600. A person with no eligible income therefore has to show £18,600 multiplied by 2.5, which is £46,500, plus £16,000, which is a total of £62,500.
3 ‘The Minimum Income Requirement for Non-EEA Family Members in the UK’, Migration Observatory, 27 January 2016.
4 ‘Skype Families: The effects on children of being separated from a mum or dad because of recent Immigration Rules’, Children’s Commissioner, 9 September 2015.
5 The Home Office impact assessment of 12 June 2012, cited in Note 1 above, estimated that between 13,600 and 17,800 couples per year would be affected, with a mid-point of 15,700 per year.
6 ‘How many people have been prevented from bringing a partner to the UK due to the £18,600 minimum income requirement?’, Migration Observatory, 14 December 2018.
7 This is always automatic for a child born in the UK itself and is true for the first generation born abroad to a British citizen, but the rules are more complex for second and subsequent generations born abroad.
8 ‘Judge tells mother she cannot take son to Hong Kong as father “can’t hug son over Skype”’, Daily Telegraph, 27 February 2015.
9 ‘Partners, divorce and dissolution’, Home Office, 2 August 2019.
10 Helena Wray, Regulating Marriage Migration into the UK: A Stranger in the Home (London: Routledge, 2011).
11 ‘Impact assessment: Tackling Sham Marriage’, Home Office, 11 September 2013.
12 Ibid.
13 ‘The implementation of the 2014 “hostile environment” provisions for tackling sham marriage: report’, Chief Inspector of Borders and Immigration, 15 December 2016.
14 ‘Family Policy: Family life (as a partner or parent), private life and exceptional circumstances’, Home Office, version 5.0, 10 December 2019.
15 ‘Immigration Directorate Instructions’, Chapter 8, Section 5a, Annex M, Children, Home Office, July 2012.
16 ‘Oxford professor’s children refused visas to join her in UK’, The Guardian, 1 October 2019. The decision was later reversed, but the legal basis for the new decision was not clear. The original conclusion appeared, on the basis of the media reports, to be a correct application of the harsh rules.
17 ‘Home Office reverses visa decision for Egyptian GP’, The Guardian, 15 October 2019.
18 ‘An inspection of how the Home Office considers the “best interests” of unaccompanied asylum seeking children’, paragraph 9.22, Chief Inspector of Borders and Immigration, 28 March 2018.
19 ‘Inspection report of applications to enter, remain and settle in the UK’, paragraph 7.15, Chief Inspector of Borders and Immigration, 24 January 2013.
20 ‘A re-inspection of the Home Office’s application of the good character requirement in the case of young persons who apply for registration as British citizens’, paragraph 3.8, Chief Inspector of Borders and Immigration, 4 April 2019.
21 ‘Home Office ordered to pay £50,000 after child separated from father’, The Guardian, 11 July 2018.
22 ‘Children’s Voices: The Wellbeing of Children Subject to Immigration Controls in England’, Children’s Commissioner, 8 November 2017.
23 Numbers taken from R (on the application of Britcits) v Secretary of State for the Home Department [2016] EWHC 956 (Admin).
24 See paragraph E-ECDR.2.5 of the Immigration Rules.
25 Ribeli v Entry Clearance Officer, Pretoria [2018] EWCA Civ 611.
26 ‘How many people come to the UK each year (including visitors)?’, Home Office, 28 November 2019, and Melanie Gower, ‘Abolition of family visitor visa appeal rights’, House of Commons Library, 5 July 2013.
27 ‘An inspection of entry clearance processing operations in Croydon and Istanbul’, Chief Inspector of Borders and Immigration, July 2017.
28 ‘AI system for granting UK visas is biased, rights group claim’, The Guardian, 29 October 2019.
29 ‘Entry Clearance Decision-Making: A Global Review’, Independent Chief Inspector of Borders and Immigration, December 2011.
30 Tony Blair, Hansard, House of Commons debate, vol. 213, col. 43, 2 November 1992.
31 Rosie Winterton, Hansard, House of Commons debate, vol. 380, col. 65, 12 February 2002.
32 Freedom of Information request 30396, 10 March 2014.
33 ‘Deportation of Lebanese man with Down’s “inhumane” – Vince Cable’, The Guardian, 6 November 2014.
34 See https://twitter.com/SoniaL77/status/1179014890519855105
35 Joe Owen, Maddy Thimont Jack, Adela Iacobov and Elliott Christensen, ‘Managing migration after Brexit’, Institute for Government, 8 March 2019, p. 28.
36 MM and others v Secretary of State for the Home Department [2017] UKSC 10.
37 Surinder Singh, C-370/90.
38 David Cameron speech, 22 January 2010, available at: https://conservative-speeches.sayit.mysociety.org/speech/601543
CHAPTER 6
ASYLUM: SANDBANKS AND CROCODILES
‘The Secretary of State … considered your account of crossing the Zaire River by canoe at night to be totally implausible. The Secretary of State is aware of the size, strength and considerable dangers posed by the river such as shifting sandbanks and crocodiles.’
So wrote an official at the Home Office in the early ’90s, in an example cited by charity Asylum Aid in their report ‘No Reason At All’.1 That was in 1995, before the internet transformed the way we live, and the canoeist in question struggled to prove that the Secretary of State did not know what he was talking about. These days, a simple search on Google quickly reveals multiple pictures of people in canoes on the Zaire (or Congo) Ri
ver. And there are no crocodiles in sight. From where had the official landed on the idea of the sandbanks and crocodiles? Were these hazards derived from an old geography textbook, a guidebook or perhaps from novelist Joseph Conrad? Or were they entirely imaginary, invented to justify a literally pre-judged refusal of asylum? There is something about the language and tone (‘totally implausible … considerable dangers’) that suggests this was no reason for refusal, but rather an excuse.
One evening in 2012, I was called to a house in south London by members of a religious community who wanted me to advise one of their members. The community had been badly persecuted in their country of origin and the man claimed to have been shot in the head before managing to flee. It later turned out that the bullet was still lodged in his skull, and he had an X-ray to prove it. He was there that evening, walking and talking, and he showed me the X-ray himself. I am no doctor, but it looked a lot like an X-ray of a bullet in a skull to me. Obviously, he had been rather lucky to take a bullet to the head and survive, although it might also be said that, on a more fundamental level, he had been pretty unlucky to be shot at in the first place. He was due to have the bullet removed the next day at hospital and the following week he would be interviewed by the Home Office.
It might reasonably be thought that a man from a persecuted religious minority with an X-ray of an actual bullet in his head stood a pretty good chance of getting asylum. But it was my job to think like a Home Office civil servant so we could prepare the case as best we could. And all of the rest of us there that evening had seen apparently very strong cases refused.
To begin with, my client would need to show proof that he was a refugee, and to do that, he would have to pass two tests. The first is whether he is believed. Officials at the Home Office like to refer to this as being ‘credible’ rather than ‘truthful’, as it is much more acceptable to say a person is ‘not credible’ than to say they are a liar. When an asylum claim fails, this is almost always the reason why: because the asylum seeker is considered to be ‘not credible’. Then, the second test my client would need to pass would be to show that he meets the legal definition of a refugee, as set out in the Refugee Convention. This definition requires that a person has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside their own country and would be unable to obtain protection within their country if they were to return.