Migration policies are harming families and society
By Danielle Cohen Immigration Law Solicitor LinkedinDanielle Cohen has over 20 years of experience as a lawyer and a reputation for offering professional, honest and expert advice.
The House of Lords Justice and Home Affairs Committee published on 28th February 2023 its report “All Families Matter – Inquiry into Family Migration”. The Committee assessed the family migration policies and found them to be complex and inconsistent. They fail both families and society.
In July 2022 the Committee launched a call for evidence, and I was a contributor. The Committee over the course of the inquiry held seven evidence sessions and spoke to 21 witnesses. It also reviewed over 80 written submissions and many of the issues that the Committee discussed were only too familiar to our experience of the application process. The examples are as follows:
Adult Dependent Relatives (ADR)
The Immigration Rules, it was found, forces families to live apart and the Home Office portrays family separation as a choice on the part of the family. It found that the current rules on ADR are so harsh that they effectively ban families from being joined in the UK by adult relatives from overseas.
The Rules, which were designed to reduce the workload of the NHS, overlook the contribution of dependent relatives to their families in the UK. The report stated that the Government’s approach is unjustified and needlessly restrictive.
Adult Dependent Relatives Pre-2012
One subject that is particular close to our heart is the adult dependent relative route. Until 2012, British citizens and permanent residents could sponsor the immigration of their parents or grandparents over 65 if they could demonstrate that the relative was wholly or mainly financially dependent on them and that the relative could not turn to someone else to receive financial support in their country of origin. Parents and grandparents under the age of 65 together with a range of other relatives, for example uncles and aunts, were also eligible if they could demonstrate that they were living alone outside the UK in the most exceptional compassionate circumstances. Applications could be lodged in the UK as well as from abroad. In 2012 a reform led to a sustained drop in the number of visas issued and the Rules on adult dependent relatives were born.
Adult Dependent Relatives Post-2012
The Home Secretary at the time acknowledged that this was a high bar, and the evidence that the Committee received on the post 2012 Rules highlighted that a tiny number of visas are now issued under the adult dependent relative route. Our evidence states that applicants feel that “it is not rule but rather a ban”. The requirements to demonstrate that care is unavailable in the country of origin was particularly problematic. It was incompatible with the expectation that sponsors can support and accommodate the applicant in the UK. The assumption is that if they can afford it, then they can afford to pay for care in the country of origin which makes the relative ineligible for the adult dependent relative visa. In addition, while care may be nominally available in the country of origin there is difficulties in securing high quality care in a country where this sector is poorly regulated. Many times we act for Indian and Pakistani families and demonstrate with expert reports that there are poor standards in care homes or carers who provide care in the home, unless there is day to day supervision. The report states “Too often caseworkers do not refer to the care conditions in the country of origin when deciding on applications”.
The rationale of not allowing adult dependent relatives to come to the UK is because it might impose a burden on the National Health Service was dismissed by the committee. Witnesses told the committee that as well as the benefit for the sponsors, it has a positive impact on the children of the parents and of grandparents and the assessment fails to take into account the contributions of immigrants to the NHS and the cost to the NHS of healthcare professionals leaving the country because they cannot sponsor the immigration of their parents. Many of our clients who apply for Adult Dependent Relatives are doctors with the NHS. It is not clear why we attract this proportion of doctors, and the evidence that the Committee received on the labour market impact also related to the healthcare sector. The British Medical Association expressed concerns about the impact on the NHS of family migration Rules and warned the Government that the Adult Dependent Relative routes have particularly caused an exodus of highly skilled workforce in the health system and wider society is in desperate need of. 20 individual healthcare professionals submitted evidence to the Committee and said that they had doubts whether to stay in the UK or reunite with their elderly parents abroad. Overall non-British citizens make up 16.5% of the NHS workforce and 37% of hospital doctors in England.
Suggestions for a reform 1
There have been suggestions of the introduction of an extension of an immigration health surcharge or a private medical insurance or a bond. This is the system in Canada, said Professor Macklin, from the University of Toronto and this undertaking by sponsors could be enforced as debt. The Committee concluded that the ADR route should be reformed to allow families to reunite in the UK, the threshold for dependents should be reduced and the range of eligible relatives extended.
We also of course advise spouses and partners in the course of our work and the Committee has dealt with the applicants who want to enter as spouses or partners of British citizens. The current Rules present a barrier for a substantial number of people. The Government set a financial requirement of £18,600 per annum plus £3,800 per annum for a couple with one child and a further £2,400 for each additional child. In its 2020 annual report the MAC regretted the previous analysis stating that it gave too much weight to the fiscal contribution of such migrant and insufficient attention to the benefits that accrue to both family and society from the route. At the time that the Rules were implemented, 47% of the adult population in the UK could not meet the £18,600 threshold, with a higher percentage for women and those outside London and South East England. That also affected some BAME groups and the young and the retired. 10 years later the uneven impact remains, although the financial requirement is now just above the national living wage of a full-time worker over 23. The Committee heard that the financial requirement has an uneven impact due to a varied earnings level according to area. The Scottish Government told the Committee that in 2021 29% of the UK citizens living in Scotland were ineligible to sponsor a spouse to come to the UK and 46.2 could not sponsor a spouse and two children.
There was a specific criticism of the narrow range of resources that are routinely conceded (for example the exclusion of the applicant’s earnings outside of the UK or support from third parties, except in rare cases). Professor Alan Manning, a Professor of Economics at the London School of Economics and Political Science and former Chair of the Migration Advisory Committee saw the financial requirements as poorly conceived and that the earnings of one person in the past six months may well be a very poor guide to the future earnings of a whole household.
Suggestions for reform 2
The Committee concluded that the Home Office is systematically deficient in processing family visas, delays pile up, and the evidential requirements are excessively complex, the fees are prohibitive and the restrictive Rules affect British citizens, permanent residents including children born in the UK, and adult citizens who have never lived in any other country but whose relatives may have a different nationality.
It stated that the financial requirements for spouses and partners should be made more flexible, and should focus on the likelihood of future income of the family unit, rather than on one individual’s past income.
Family migration Rules should be simplified and the process should be straight forward, affordable, transparent and fair. The Government should significantly increase funding to improve standards of service by retraining case workers. “Humanity and decency should be at the heart of a rights-based family migration policies”.
Unmarried and same sex couples are also disadvantaged by the Immigration Rules since the visa found the Committee, relies on conforming to norms of heterosexual married life. Unmarried couples are usually expected to have been living together in a relationship akin to marriage or civil partnership for at least two years. However, some couples including same sex couples are unable to live together in their country of origin because of local laws or social prejudice.
We also work extensively with asylum seekers and assist families in family reunion applications. Every year hundreds of unaccompanied children are recognised as refugees or receive humanitarian protection, but they cannot normally sponsor any relatives to join them in the UK, not even their own parents. They are then advised to make applications outside the Rules, but these are expensive and difficult. With the absence of Legal Aid or adequate legal advice many children are unaware of any applications which are possible for them. Children refugees trying to reunite with relatives other than their parents find it difficult to succeed and the Committee heard advice from DAOBAB Centre for young survivors in exile, that children without family find it difficult living with grief and separation and survivor’s guilt.
The problem raised by several witnesses is the Rule on “sole responsibility”. If one parent of a child lives in the UK but the other parent lives abroad or the child lives with another relative, which is not a parent, a child will be admitted only if the UK based parent has sole responsibility for that child. This causes separation and disadvantages when there are shared parenting arrangements or where there are extended families which support the raising of a child. The only alternative is to show that there are serious and compelling family or other considerations which makes exclusion of the child undesirable. This is a very high threshold which must be met by the UK based parent to reunite with their own child under the Rules.
In addition, the Committee dealt with the delay in processing applications and the consequences on the family. Until May 2022 a person was to expect a decision on a spouse application within 12 weeks. Now one can expect a decision within 24 weeks. When applying in the UK to extend a family visa, a decision can be made within eight weeks on the five years route and 10 months on the 10 years route.
One of the reasons for the delay was identified as the Ukrainian Scheme where on 11th May 2022 the Home Office guidance was updated to state that the UKVI would prioritise Ukrainian Family Scheme applications in response to the invasion of Ukraine. The Committee heard evidence of something that we are fully aware of, that even when the application is pending, and we have provided all the evidence necessary to the best or our knowledge and belief, the case workers frequently ask for further information, often information that has in fact already been provided. An appeal can take up to a year to be heard and many times the Home Office then revise its own decision, just before the hearing. This means that the delay in waiting for an appeal or the initial refusal serves no purpose at all. Even when an appeal is successful, we know only too well that months may pass before the decision is actually implemented through the issuing of a visa. The Committee also heard a range of evidence on difficulties in communicating with the Home Office about applications. Often, we are asked by our clients, “Have you heard anything, can you provide us with an update?”. Despite the lengthy delays in processing applications, the Home Office does not keep us updated and attempts to chase the Home Office to reach a decision have little effect. When we try to contact the Home Office this usually results in charges. The responses are usually standard emails and do not provide specific dates on which the application will be determined.
Like ourselves in an attempt to expedite or clarify the position for our clients, Kent Law Clinic told the Committee that on a number of occasions they resort to emailing MPs or sending pre-action protocol letters to threaten Judicial Review in order to get a decision implemented. However, as we know MP intervention may not be enough because the MP themselves sometimes cannot get a response from the Home Office.
Finally, the Committee addressed costs. Whilst solicitors charge for services, the fees for the application for the Home Office often outweigh the legal costs of instructing a solicitor. The Committee heard that an adult joining a partner on a 10-year route to settlement can expect to pay £7,086 in fees to the Home Office in that period. An adult applying with a child to join a partner in the UK can expect to pay £9,980 in fees if the five-year route to settlement is followed and £14,172 if a 10-year route to settlement is followed. Witnesses pointed out that application fees are not the only cost. There is on top the Immigration Health Surcharge which family visa holders must pay. Having to take an English language test and Life in the UK test as well as DNA tests and translation fees, courier fees, and expert fees.
The Good News
The report is fascinating and its conclusions are encouraging. One of the suggestions (which is of particular interest to me) was that the Home Office should reduce the demand on its services by amending the requirement that family visas are regularly renewed and should also increase its capability to supply these services to reduce delays. The conclusion is that reuniting families will boost fiscal contributions, retain essential skilled workers and prevent families from falling destitute. It recommended that the Home Office should re-introduce a right of appeal against negative decisions on a family visit visa and making evidential requirements more flexible and less burdensome.