Impact of family reunification policies policies The AIRE Centre - - PowerPoint PPT Presentation

Impact of family reunification policies policies

The AIRE Centre 26 September 2013

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Mission: To promote awareness of European law rights and assist marginalised individuals and those in vulnerable circumstances to assert those rights. Activities:

• Activities:
• Take cases to the European Court of Human Rights

(including cases on behalf of non-EU trafficking victims facing expulsion).

• Provide free legal advice to individuals and their advisers
• n their rights under EU law (mostly EU law on the free

movement of persons).

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Outline

• Findings from AIRE Centre research into the

impact of family reunification policies on integration

• Strategic responses
• Strategic responses

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Family Reunification Requirements: a barrier or facilitator to integration? barrier or facilitator to integration?

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Objectives, scope and methodology

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Objectives

• Evaluate impact of family reunification policies

and legislation in the United Kingdom on the ability of third country national (TCN) migrants to integrate into the UK

• Part of wider study, funded by the European

Commission, concerning the impact of FR legislation across 7 Member States: Ireland, the Netherlands, Germany, Portugal, Bulgaria, Austria, United Kingdom

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Scope

• 3 separate categories of TCN family migrant, distinguished by category of sponsor: those

sponsored by:

– TCNS – Union Citizens – UK nationals

• Term ‘Family Reunification’ referred to 4 separate concepts:

– Family reunion (reforming in the host state a family previously existing overseas) – Family formation (establishing a new family unit in the UK) – Family retention (protecting members of an existing family unit from expulsion) – Family regularisation (regularising in the UK the status of an existing family unit_

• Family reunification requirements:
• Family reunification requirements:

– Accommodation – Income – Age – Integration

• Integration:

– Employment – Education – Social inclusion – Language skills

• Time-span considered:

– 2002 to 2012 (interviews before implementation of 9 July 2012 reforms) 7

Research method (1)

• Mixed method:

– Literature review – Official immigration statistics – Legal research Qualitative research with: – Qualitative research with:

• Individuals who are subject to family reunification legislation

and policies (‘individuals’)

• Representatives of NGOs that work with such individuals

(‘NGO representatives)

• Policy makers who are responsible for

developing/implementing fmily reunification policies (‘policy makers’)

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Research method (2)

• Sample:

– Individuals:

• 20 individuals (one focus group of 10 individuals & 10

individual depth interviews) – insight into as broad a range

• f experiences as possible; not representative
• Purposive sampling – mix of direct invitations, adverts and

‘snowball sampling’ – risk of sample bias but screening, wide distribution of invitations t participate and avoiding reliance

• n any one ‘snowballing’ network to mitigate these risks

– 6 NGO representatives – 3 policy makers – 1 operational; 2 strategic

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Summary of findings

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• Rules on family reunification are complicated and

depend on number of factors including the category of sponsor and category of family member or dependent applying.

• Rules for EEA nationals’ family members are generally

less restrictive than those that apply to family

Legislation

less restrictive than those that apply to family members of settled TCN migrants, PBS (points-based- system) migrants, (post-flight) refugees, and UK nationals.

• Family members of settled TCN migrants and UK

nationals face the most stringent income, accommodation, age and integration requirements

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Case law of the UK, ECtHR and CJEU

• Difference in focus between ECtHR and CJEU has

contributed to situation in which EU citizens exercising TRs now enjoy far greater rights to family reunion than UK nationals (or settled TCNs): TCNs):

– ECtHR – focus on whether particular stte has

• verstepped its margin of appreciation in respecting

individual rights – CJEU: Whether restrictions on family migration my discourage EU citizens from exercising their rights to free movement or will impede the enjoyment of EU citizenship

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Policy developments (1)

Date Policy Type Detail of policy 2003 Age Minimum age requirement for Applicants of spouse/partner visas increased from 16 to 18 2004 Age Minimum age requirement for Sponsors

• f

spouse/partner visas increased from 16 to 18 2004 Integration ESOL Level 3 test introduced for citizenship 2005 Integration Life in the UK test introduced for citizenship 2006 Income Income requirement interpreted as being minimum level above which families become eligible for income families become eligible for income support 2007 Integration ESOL Level 3/Life in the UK test introduced for settlement 2008 Age Minimum age requirement for spouse/partner visas increased to 21 2009 Income Tribunal case decides that third party support can be relied upon to meet the income requirement 2010 Integration A1 level pre-entry test introduced 2011 Age Minimum age requirement for spouse/partner visas lowered to 18, following successful legal action 2012 Income Minimum income requirement for spouse/partner visas increased to £18,600 for a partner, with incremental increases for child dependants 13

Policy developments (2)

• Bulk of policy developments concerning income, accommodation, age and

integration requirements have affected TCN family members of settled TCNs (including those under the family migration route and extended/post-flight family members of refugees) and UK nationals

• Overwhelming trend towards more restrictive requirements for this group,

driven (at least latterly) by explicit policy of reducing net migration driven (at least latterly) by explicit policy of reducing net migration

• Obligations under EU/ECHR law have led to fewer restrictions on family

reunification for Union Citizens and their family members – Policy makers confirmed that this is the reason for the difference in treatment across the categories of migrants

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Administration of Family Reunification Requirements in the UK

• Significant gap between way that immigration

law (especially rules applying to settled TCNs, refugees, asylum seekers, and UK nationals) is meant to work, and its operation in practice. meant to work, and its operation in practice.

– Poor first instance decision-making – Poor access to justice (reduced appeal rights, reduction in legal aid)

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Impact of FR requirements on achieving FR for TCN/ UK national sponsors (1)

• Overwhelming trend towards more restrictive

policies

• Individuals & NGOs felt that these policies

made it harder to achieve family reunification made it harder to achieve family reunification

• Statistics published by Home Office =

consistent with this. E.g. overall trend 2005- 2011: decrease in applications for/grants of Entry Clearance Visas

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Impact of requirements on FR for TCN/ UK national sponsors (2)

• Income & Integration requirements particularly difficult to meet

– New income requirement (as originally envisaged) estimated to result in 45%

• f present applications for FR being refused
• Literature review/qual. research suggest requirements (especially income,

language & age) discriminatory in their impact against:

– Those from lower socio-economic groups, and those likely to have lower incomes (women, young people, older people, minority ethnic groups, refugees applying for extended/post flight family reunification) refugees applying for extended/post flight family reunification) – Those from non-western cultures, of from countries without visa application centres, approved language testing centres or widely available English language courses

• Insufficient data to see whether potentially discriminatory impact on

these groups is borne out in practice

• But available data on pre-settlement language tests suggests that they are

harder for people from non-English speaking, or less developed countries to meet.

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‘It’s completely driven by the government’s pledge to push net migration down. They’re looking at every single one of the categories allowing for entry into the UK and seeing how they can systematically push down numbers in each one of these categories. Issues of fairness and integration are secondary’ NGO representative ‘It’s an absolute bar. If you can jump over the bar – if you do come from ‘It’s an absolute bar. If you can jump over the bar – if you do come from a country where there’s a high level of competence in English and you’re earning reasonable salary…you’ll be fine. But these people are integrated anyway. But for people outside of that category it’s not making integration more difficult, it’s making it impossible’ NGO Representative

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Impact of requirements on FR for TCN/ UK national sponsors (3)

• Procedure for family reunification applications

a barrier to achieving FR:

– Opaque system – Poor quality decision making by embassy & UKBA staff Poor quality decision making by embassy & UKBA staff – Lack of facilities (language test centres, aproved language courses, visa application centres) for meeting requirements for FR – Ignorance of circumstances under which UK nats can apply as EU national sponsors

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‘We didn’t realise that we could have got an EEA2 residence permit due to my husband having worked in

• Spain. So we ended up paying a lot of money for

something that we could have got for nothing’ Argentinian spouse of British national sponsor ‘After 2 years apart, we have now decided that for me to relocate to Germany would be our best chance to be together and enjoy our remaining lives as a family’ British national sponsor of Russian national spouse

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Impact of requirements on FR for Union citizen sponsors (2)

• UK policy driven largely by EU legislation & case law
• As a result, rights of Union citizens & their FMs have

strengthened & more EU law rights have been actualised in the UK due to legal action

• Individuals/ NGO representatives recognised that the

FR requirements for these groups were less strict but Individuals/ NGO representatives recognised that the FR requirements for these groups were less strict but said individuals experience problems arising from:

– Improper implementation of EU law in the UK – Complexity of system – Delays in processing applications – e.g. 3 individuals experienced delays of over a year in applications for EEA2 permits

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‘My husband had to negotiate rent to meet the financial requirements. The rent should not exceed certain percentage of the salary to ensure that he could support me in case of unemployment. The rent agreement and bank statements were difficult for my husband to get hold of. It was difficult for him to take his payslips because due to a technical mistake, all the admin documents were in Holland’ Ukranian national spouse of German national sponsor ‘I found the UK BA website extremely difficult to navigate. You would think that you were on the right track but then you’d be hal fway through a form before you realised that you were in the wrong form’ American national civil partner of Spanish national sponsor

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Impact of FR Requirements on Employment

• Literature review :

– Despite most categories of FM having right to work in the UK, there are barriers to them doing so in practice

• Employers’ attitudes towards family migrants & poor knowledge
• f immigration law
• Lack of support in finding work
• Individuals and NGOs:

– Requirements do not aid integration – For some, delays arising from meeting the language requirement weakened family members’ prospects of employment in the UK employment in the UK – Legal status/rights a barrier to employment/labour market mobility:

• Lack of entitlement to public resources in probationary period
• Employers put off by unstable immigration status
• Not being able to leave UK for work trips (e.g. when passports

with Home Office)

– Poor administration of applications for FR a barrier to employment/labour market mobility:

• Delays in processing applications
• Poor advice from UKBA officials leading to applications being

rejected

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‘[I] couldn’t leave the country. I was working for a think tank. Normally I would have been required to travel but I couldn’t do that…I was lucky because I had a stable job but if I had lost my job during that time, I wouldn’t have been able to get another job because I wouldn’t have able to get another job because I wouldn’t have been able to prove my residence status’ American national spouse of Canadian, then Polish national sponsor

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Impact of FR Requirements on access to education

• Literature review:

– No evidence that requirements for FR facilitate access to education – Children aged 5 to 16 have right to state education in UK but are not always able to facilitate this right in practice practice

• Qualitative research:

– Variation in access to primary school education for TCN family migrants in the UK – TCN family members of TCNs/UK nationals who are

• ver 16 face financial barriers to education in the UK

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Impact of FR Requirements on Language Skills

• 3. Language skills
• No evidence of long-term impact
• Literature review:

– Government implemented pre-entry tests despite lack of evidence of effectiveness – Evidence suggests that the best place to learn English is in the UK and that pre-entry acquisition of A1 English will not appreciably speed up the pre-entry acquisition of A1 English will not appreciably speed up the acquisition of additional language skills on entry to the UK

• Policy makers:

– Implicitly argued that pre-entry tests aid language skills but failed to show link between language test and long-term linguistic ability. One tacitly accepted that the policy was not based on evidence of positive impact

• NGOs & individuals:

– Doubted long-term impact of tests – Some found them counterproductive to learning language skils:

• People learn language faster when surrounded by English language speaking people
• Cost of pre-entry language lessons/tests left no money for post-entry lessons

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‘People may learn just about enough to pass their language test before arrival and complete the 40 hours or whatever it is that they need in

• rder to pass the test, but then it may be a few

months before they come to the UK and they will months before they come to the UK and they will

• ften have forgotten how to speak. So I’m not

sure that it really helps them to integrate’. NGO representative

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Impact of FR Requirements on Social Inclusion

• 4. Social inclusion
• EU Commission’s definition of social inclusion is broad and non-
• exhaustive. Includes: civic participating, ability to build social

networks, access to social goods and attitudes of host community

• Literature review:

– Probationary period, and lack of entitlement to public resources during this period a barrier to social inclusion – restrict independence, during this period a barrier to social inclusion – restrict independence, and limit migrants’ ability to build social networks – Suggestion that TCN family migrants are increasingly excluded from civic participation in the UK – Knowledge of Life in the UK test a bureaucratic hurdle with no relevance to participation in society and no positive impact on integration

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‘They threatened my wife, saying they would be waiting for her when she got back. They separated her from her child and pushed her and she fell over. She was then semi strip-searched by an unsupervised male’ British national sponsor of Honduran national spouse ‘It was a huge financial commitment…we have spent so much money to be here. You have no idea. It’s unbelievable…I’m almost integrated but not yet because I don’t have [enough] money or a stable

• income. That makes me stay at home a lot. I don’t go out and socialise because I don’t want to spend

money’ Argentinian spouse of British national sponsor ‘The man asked him what he wanted to do in England and I said that he wants to seek work and study English and the man said ‘is that at your expense or the tax payer’s expense?’ I mean, he had his visa English and the man said ‘is that at your expense or the tax payer’s expense?’ I mean, he had his visa and they said its alright for him to come here…HE was held for two hours going through customs. I think it’s really detrimental for people to feel that they’re not wanted here’ British national sponsor of Palestinian national spouse ‘The Life in the UK test doesn’t mean anything. My grandfather who fought in wars for the UK and has lived here all his life…he took the test on the internet and he failed it. It’s ridiculous. [My spouse] doesn’t need to know the rules of Cricket. She just needs to be able to get on with her life’ British national sponsor of Honduran national spouse

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Impact of FR Requirements on Integration

• 4. Social inclusion (continued)
• Qualitative research:

– Policy makers viewed Life in the UK test as important means of ensuring that migrants could participate in British society but implicitly accepted lack of evidence for this – Most individuals/NGO representatives thought the knowledge reuquired to pass the test was irrelevant to social inclusion Anxiety about the test and the contingency of settlement on passing it – Anxiety about the test and the contingency of settlement on passing it impacted on job prospects, financial stability, independence and psychological wellbeing. – Settled TCN & UK national sponsors & FMs found financial costs associated with achieving FR left them in a weaker position to be socially included in the UK – Dependence of immigration status on sponsor led to FMS feeling a lack of agency – Administration of applications for FR, including treatment by border agency staff left individuals feeling as if they were regarded as criminals/treating the system, even if they had a right to (or had been granted) a visa.

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Link between family reunification and integration

• Literature review found very little UK based research that directly

considered the link between family reunification and integration

• Study by the British Red Cross suggests FR is essential to integration
• f refugees.
• Primary research: consensus that FR is very important to
• integration. Presence of family members supports integration

through: through:

– Raising self-esteem – Helping them to work towards ambitions – Supporting their position in the host community

• Individuals who were, or had been, separated from their family

members stressed the detrimental impact that this had on their ability to integrate into the UK.

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Strategic responses?

• For the AIRE Centre, the focus is on proper

implementation of existing laws – in particular EU law on family reunification and ECHR rights

– Proper implementation of rules for FR (e.g. better – Proper implementation of rules for FR (e.g. better first instance decision-making, amendments to domestic legislation) – Right to good administration under Article 41 of the Charter of Fundamental Rights of the EU (e.g. in relation to delays in processing application)

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Update

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Update

• MM & Ors v Secretary of State for the Home Department [2013]

EWHC 1900 (Admin). At paragraph 126 Blake J holds as follows:

– “…to set the figure significantly higher than even the £13,400 gross annual wage effectively denies young people and many thousands of low-wage earners in full time employment the ability to be joined by their non-EEA spouses from abroad unless they happen to have wealthy relatives or to have won the lottery. This frustrates the right of refugees and British citizens to live with their chosen partner and wealthy relatives or to have won the lottery. This frustrates the right of refugees and British citizens to live with their chosen partner and found a family unless such modest earnings could be supplemented by any reasonably substantial savings, third party support or the future earnings or the spouse seeking admission. The executive can hardly be heard to say that the minimum adult wage is a manifestly inadequate sum to provide a basic standard of living over the subsistence threshold for a household without dependent children.”

• COMPAS/IMPACIM report on impact of restrictions and

entitlements on integration of FMs in the UK

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Strategic Work of the AIRE Centre

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Invisible EU Migrants Project (EPIM)

• Aim: get EU institutions (including domestic institutions

making EU law decisions) to ensure that vulnerable and marginalised EU migrants & their family members are able to exercise their EU law rights:

– Right to family reunification – Right to residence documents – Right to residence documents – Right to good administration – Right to legal aid/fair trial

• Method:

– Strategic litigation (looking for cases!) – Training & roundtables – Influencing policy makers to ensure that EU law is properly implemented in the UK

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Focus is on EU law

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Court of Justice of the European Union, Luxembourg

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Infringement Proceedings

Article 258 TOFU (formerly 226 TEC) If the Commission considers that a Member State has failed to fulfil an obligation under this Treaty, it shall deliver a reasoned opinion this Treaty, it shall deliver a reasoned opinion

• n the matter after giving the State concerned

the opportunity to submit its observations. If the State concerned does not comply within the period laid down by the Commission, the latter may bring the matter before the Court.

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References to the CJEU

Article 267 TOFU (formerly 234 EC) The Court of Justice shall have jurisdiction to give preliminary rulings concerning: (a) The interpretation of the Treaty; (b) The validity and interpretation of acts of the institutions of the Community and of the ECB; (c) The interpretation of the statutes of bodies established by an act

• f the Council, where those statutes so provide.
• f the Council, where those statutes so provide.

Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon. Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of Justice.

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Strategic litigation (1)

• C-83/11 Secretary of State for the Home Department v Rahman
• ‘Family reunion’
• TPI by AIRE Centre
• Case concerned meaning of article 3(2) Directive 2004/38:

“3(2) Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation, facilitate entry, and residence for the following persons: (a) any other family members, irrespective of their nationality, not falling under the definition in (a) any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependents or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the Union citizen…”

• Sought clarity on conditions under which an ‘other’ family member will have a right

to reside in the UK under this rule

• No automatic right to reside
• Frustrating judgment – wide discretion to the UK over meaning of ‘dependence’

and whether to ‘facilitate’ entry

• BUT must set out criteria that will take into account in domestic legislation

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Strategic litigation (2)

• C-400/12 MG v United Kingdom

– ‘Family retention’ – Protection against expulsion from the UK for Union citizens under Article 28(3) of Directive 2004/38:

“An expulsion decision may not be taken against Union citizens, except if the decision is based on imperative grounds of public security, as defined by Member States, if they: (a) Have resided in the host Member State for the previous ten years” (a) Have resided in the host Member State for the previous ten years”

• Whether periods of imprisonment count towards

residence

• Whether residence needs to be immediately prior to

expulsion decision

• Whether count forwards or backwards
• Hearing in June – awaiting the response…

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Strategic litigation (3)

• R (on the application of Quila and another) v Secretary of State for

the Home Department

– Challenge to increased age limit for spousal visas – In the lead judgment given by Lord Wilson, the Supreme Court held that the rule was ‘rationally connected to the objective of deterring forced marriages… [b]ut the number of forced marriages which it deters is highly debatable. What seems clear is that the number of deters is highly debatable. What seems clear is that the number of unforced marriages which it obstructs from their intended development for up to three years vastly exceeds the number of forced marriages which it deters’. The Court concluded that the Secretary of State had failed to establish that the interference with the rights of the respondents under Article 8, which protects the right to private life, that had been caused by the rule was justified. – See more at: http://www.airecentre.org/news.php/37/press-release-r-

• n-the-application-of-quila-and-another-v-secretary-of-state-for-the-

home-department#sthash.YukCFmlQ.dpufCase

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