UK Immigration Law and Non European Economic Area Nationals

“Explain how current UK immigration law deals with family reunion for non-EEA nationals.

Critically evaluate whether or not Article 8 of the ECHR has had any significant impact on UK immigration law in family visa application.”

Introduction

The topic of migration and marriage legitimacy has been hotly debated across Europe in recent years and as a result certain Northern European states have resorted to tightening spousal immigration regulations in an attempt to stem the influx.

In the United Kingdom, the issue has also received its fair share of political and public attention but after recent public policy consultations, the raising of the minimum age of spousal migration, and the introduction of pre entry English language requirements for spouses and a stated aim to cap immigration numbers, it seems likely that Britain will take a page from Denmark and the Netherlands in seeking to tighten restrictions on spousal immigration.

The purpose of this paper is to explain how the immigration law of the United Kingdom (UK) approaches the issue of family reunion for individuals immigrating to the country from outside of the European Economic Area (EEA). Article 16(3) of the 1948 Universal Declaration of Human Rights asserts that the right to a family life is an internationally recognised human right[1], as does Article 23(1) of the International Covenant on Civil and Political Rights 1966[2] and Article 8 of the European Convention of Human Rights (ECHR).[3]

It should also be noted that the UK is still a member of the European Union (EU), and as such, it is required to comply with EU law, although it has chosen to opt out of the majority of the EU legislation pertaining to immigration under the EU Council Directive 2003/86/EC on the right to family reunification.[4] However, Article 8 ECHR has been incorporated into English law through its inclusion in the Human Rights Act 1998[5], and it is therefore the most relevant legislation in regard to the family reunification of Non-EEA nationals in the UK. It should be noted, however, that the rules on family reunification in English law are rather intricate, and they are complicated further in light of the increase of immigration from refugees, especially in relation to the civil war in Syria. This has resulted in campaigners placing pressure on the Government to relax the current laws.[6] Indeed, the Red Cross has reported that so restrictive are the UK rules on family reunification, naturalised British citizens have been staying with their family members who are migrants in the migrant camps of northern France, as it is so difficult for them to enter the UK.[7] In 2012, sponsors need income of £18,600 annually or more depending on the number of dependants in household. Third parties contributions are disallowed disregarding Mahad.

Family Immigration Rules

Family migration is one of the major categories of non-European migration to the United Kingdom. Family migration includes anyone seeking to cross into the UK for the purpose of joining or accompanying a family member. Information compiled from the Office of National Statistics, including the International Passenger Survey (IPS) and Long-Term International Migration (LTIM) estimates, are based on this broad definition.

Appendix FM of the Immigration Rules [8] as well as Part 8 of the Immigration Rules contain the law pertaining to family migration into the UK.[9] These sections provide the details in regard to the different types of family members such as children, spouses, or grandparents, and are not only extremely complicated but also require significant expenditure on application fees, in addition to which the eligibility requirements are extremely hard to reach, although the refugee family reunion rules are somewhat less onerous.[10]  A key problem is the requirement that the sponsor of a spouse must satisfy the financial income requirement of a minimum of £18,600 per year, and that the spouse possesses basic competence in English.[11] The requirements for immigrants aiming to bring in other family members are also onerous and dependent upon meeting certain conditions, and will be considered “exceptional and compassionate circumstances.”[12]. In the case of MM vs SSHD, , Blake J stated that the requirements were not illegal per say since they do not ordinarily demand in a non-compliant conclusion. However, the practicality of these rules to citizens and refugees would often be unlawful because their practicality, including the difficulty meeting the income requirement, went further than necessary to achieve the legitimate aims of the policy but the CA overturned the decision on the grounds that in certain circumstances, exceptions could be allowed therefore making it compatible with human rights. However in the case of Bibi, the Supreme Court took a more aggressive position than the Court of Appeal, demonstrating the Court’s position that the Home Office should not ignore its duties under Article 8 ECHR by citing ‘exceptional’ cases that are most times maliciously written and applied. How this will play out will be determined in the future. Whatever the final draft of the guidance entails applicants will certainly not be in as secure a position as if the Court had enforced a change of the Rules.

The case of Gül v Switzerland[13] in the European Court of Human Rights was significant in its consideration of family rights of reunification as well as of a the concerns held by a state in relation to immigration, and that the “extent of State’s obligations to admit to its territory relatives of settled immigrants will vary according to the particular circumstances of the persons involved and the general interest….a State has the right to control the entry of non-nationals into its territory.”[14] This case concerned a Turkish national who had been granted a residence permit by Switzerland for humanitarian reasons. However, he complained that the Swiss authorities had breached Euroepan law pertaining to the right to family life in their refusal to allow his twelve-year-old son to enter Switzerland and to establish residence in the country.  Relevant to the issues was that   Gul drew invalidity welfare from the Swiss state, and his wife suffered from epilepsy; Gul asserted that these factors and his poor financial situation made it impossible for him to travel to Turkey. In a previous case concerning this matter, the Swiss minister for refugees had held that Gul had not actually been subjected to persecution in Turkey, and that he was not therefore eligible to be granted political asylum.[15]

Yet the European Court of Human Rights took a completely different view of Gul’s situation and the exclusion of his young son from Switzerland, and they ruled in his favour, concluding that there had indeed been a breach of Article 8 ECHR. Nonetheless, the European Court of Human Rights did set out a number of rules, noting its support for the right of states to control its borders and those seeking to enter or settle within them.[16] Furthermore, the Court explicitly noted that factors which must be balanced in every situation are those of the individual against those of the public, and it asserted that “Article 8 cannot be considered to impose on a State a general obligation to respect the choice by married couples of the country of their matrimonial residence and to authorise a family reunion in its territory.”[17]

It should be noted that British law does not actually provide any legal right for either a British citizen, or a migrant who is settled in the country to be permitted to join by his legal partner.[18] It is for this reason that the entry requirements for family members are contained within the aforementioned Immigration Rules, rather than in a parliamentary statute.[19] These Rules are however made under Section 3(2) of the Immigration Act 1971.[20] Furthermore, it is necessary that the decisions that are made by UK immigration officials are compliant with the decisions made under the law of the European Union.[21] Nonetheless, immigration officials do have the right to deport even where it is clear that Article 8 ECHR provides protection, under the Immigration Act 1971, where the Secretary of State considers that the deportation is “conducive to the public good.”[22] One such case was N (Kenya) v Secretary of State for the Home Department.[23]  The applicant had been convicted for imprisoning and raping a woman and had been given a ten-year prison sentence.  In cases such as these, it is evident that the state has the right to consider the safety of the public over the right of the applicant.

Different rules apply to different types of family members. In the case of a spouse, the spouse who is abroad is required to meet the requirements of the Immigration Rules that may permit entry if fulfilled.[24] In relation to the UK, a relevant case that can be distinguished from that of Gül v Switzerland is Chahal v United Kingdom[25], which concerned an Indian citizen who had bene granted to leave to remain in the UK, although he had entered the country illegally. When he returned briefly to India, his association with a Sikh political movement meant that he was subject to detainment and torture by Indian police. Thus, on his return to the UK, he claimed asylum. However, this case is more pertinent to a consideration of Article 3 ECHR, which concerns the right to freedom from torture or degrading treatment. Nonetheless, the ECHR did find in this case that there had was in fact a breach of the right to family life under Article 8 ECHR as the man concerned had lived together with his wife in the UK for twenty years, and their two children had attained British nationality.[26] The European Court of Justice ultimately held that Chahal should remain in the UK with his wife and children. It is also relevant to note here that the issue of family reunion for non-EEA nationals in the UK, and indeed across Europe, is a matter that must be examined in detail due to the fact that where migrants marry Europeans; the children resulting from such marriages assume dual nationality.[27]

There are also specific requirements for the entry into the UK of children, and although the key principle in relation to children in English law is found in Section 1 of the Children Act 1989, which concerns the welfare of the child,[28] in immigration cases, however, this principle is not given its usual priority. This was established in the 1998 case of R v Secretary of State for the Home Department, ex p Gangadeen.[29] It is notable that when this case was heard in the UK, the European Convention of Human Rights was not yet implemented within UK law, although this was to be done in the form of the Human Rights Act 1998.[30]

The later case of R v Secretary of State for the Home Department, ex p Ahmed and Patel [31] established that the child welfare principle must be balanced against other immigration issues such as financial support and the importance of the immigrant not requiring reliance on public welfare. In relation to the entry of family members to the UK, they can be excluded on certain grounds and under the discretion of the immigration officer, if he suspects issues concerning the character or associations of the individual, or considers that entry would not be conducive to the public good. The Immigration Rules specify that “the immigration officer must specify what past or future action of the person makes his exclusion conducive to the public good. Vague generalisations […] will not suffice.[32]

As noted in regard to UK law on immigration must take into account EU law and judgments, the UK has not opted into certain laws, such as the EU Council Directive 2003/86/EC on family reunification. The Non-EEA family members of EU citizens have the right to entry to the EU. However, EU Member States also have the right to refuse entry to these relatives on various grounds, including on public security, policy, or health, although each case must be examined individually.[33]  It is not possible to discuss the varying rules pertaining to family members; however, it should be noted that they differ depending upon the particular relationship.

Furthermore, the UK Government and authorities are legally bound by their ratification of the European Convention of Human Rights[34] (ECHR) and its implementation in UK law in the Human Rights Act (HRA) 1998[35] to consider Article 8 ECHR concerning the right to respect for family life. Article 8 provides refused migrants with grounds for appeal against immigration decisions, as Section 6 (1) of the HRA provides that it is “unlawful for a public authority to act in a way which is incompatible with a Convention right.”[36] This is enforced by the fact that Article 8 (2) provides that a public authority must not interfere with the right to family life unless this is in accordance with the law and as is necessary in a democratic society “in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”[37] The interference by immigration authorities must therefore be balanced with these reasons for refusal, and this is a question of fact, which the court will consider.

The court will consider whether there is a family life in the UK, and whether refusal of entry will interfere in this family life. Looking at the case of Marckx, the state was obligated to introduce legal safeguards into domestic law that enable a child from the time it is born to be given a chance to assimilate into the family in accordance with Article 8. This approach was followed in Airey and in Johnston but here the court emphasized that the obligation would not create an obligation on the Irish government to introduce measures permitting marriage and re-marriage. In the case of Abdulaziz, Cabales and Balkandali v UK, two wives in the UK who were not British citizens had been granted indefinite leave to remain and sought to have their husbands join them. The European Court of Human Rights (EctHR) held that it had not been shown that there were “obstacles to establishing family life in their own or their husbands’ home countries or that there were special reasons why that could not be expected of them”. [38] The European Court found that the UK courts had not breached Article 8, especially because in this case the wives had been aware that their husbands had only been granted a limited residence in the UK, although it did hold that here had been a breach of Article 14, ECHR, which provides protection from discrimination.[39]

The decisions of the courts have shown that they will however aim not to discriminate where possible; indeed, in AL (Serbia) v Secretary of State for the Home Department, which concerned claimants who had arrived in the UK as children but upon reaching the age of majority were marked for deportation, it was stated that some grounds are so offensive to our notions of respect due to the individual…. that they are seldom if ever acceptable grounds for difference in treatment.”[40] It is important to note the specific statement made by Baroness Hale in this case, in which she asserted that it is “the discriminatory effect of the measure that must be justified, not the measure itself.”[41]

In the case of Gaskin, we witness a different perspective on the issue to private life. The courts ruled that the applicant, who had spent his childhood in care, should be granted access to information that may help them understand their childhood. It follows from this ruling that Article 8 establishes an affirmative obligation on the state to institute a system in which ‘the interest of the individual seeking access to his records must be secure when a contributor to the records is either not available or improperly refuses consent’

The issue in this positive obligation debate surrounding the interpretation of Article 8, is not whether the state has interfered without justification, with the individual’s privacy but whether a ‘lack of respect’ of their privacy and family life can be constituted, that is, whether the state has failed to take the required action to recognize the individual’s right fundamental privacy and family

In the 2007 case of Huang & Kashmiri v the Secretary of State for the Home Department, the House of Lords clarified that the key issue is whether the life of the family “cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighting in favour of the refusal”, and whether such refusal amounts to a breach of the right provided by Article 8 ECHR.[42]  That case concerned a situation in which although the applicant for asylum had been refused leave to remain in the UK, the applications of his family had been granted, and he claimed that consequently his right to family life under Article 8 ECHR had bene breached. Furthermore, the UK courts have held that the refusal of leave is permitted under Article 8 (2) ECHR where the aim is the control of immigration, as was held in Abdulaziz, Cabales and Balkandali v UK.[43] However, the authorities are required to consider each case on its own facts. It is also required that the interference of the immigration authorities is considered necessary in a democratic society, although the European Court of Human Rights has previously held that states “enjoy a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention.”[44] In the 2001 case of R v Secretary of State for the Home Department, ex p Daly, the House of Lords held that the limitation of Article 8 rights will also be in relation to whether the “interference was really proportionate to the legitimate aim being pursued.”[45]

Family relationships can be complicated, and one problem, which has emerged, is where the authorities and courts must consider who has the right to family life. This occurs where one family member is removed, as in the case of Kehinde v Secretary of State for the Home Department. The authorities had narrowly interpreted the law on immigration, and the case held that in an appeal under Section 65 of the Immigration and Asylum Act 1999[46], which is now Section 82 of the Nationality, Immigration and Asylum Act 2002.[47] The case held that there is no obligation for the authorities to consider “claims made about the human rights of individuals other than the appellant or individuals who have not themselves been the subjects of a decision which is under appeal”, and that such claims are irrelevant.[48] However, in Beoku-Betts v Secretary  of  State  for  the  Home Department,  which concerned an appeal made by a refugee from Sierra Leone, the House of Lords interpreted the right to family life more broadly.[49] The case concerned a young man who had claimed asylum from the political violence in Sierra Leone; he came from a wealthy and prominent family in Sierra Leone and had himself been directly subjected to extreme violence, including being forced to undergo a mock execution. When the UK immigration authorities refused him leave to remain in the country following the expiry of his permission to remain, he claimed his right to a family life under Article 8 ECHR, In addition the right to protection from cruel treatment under Article 3 ECHR.  The case passed through the Immigration Appeal Tribunal and the Court of Appeal before reaching the House of Lords. The judgment of the House of Lords held that the previous courts had been mistaken in interpreting family life so narrowly, and noted the key principle that was stated in the 2007 case Huang & Kashmiri v the Secretary of State for the Home Department, in which it had been noted that the importance of Article 8 ECHR lies in its protection of the family unit. As the judge, Lord Brown, noted,

“human beings are social animals. They depend on others. Their family, or extended family, is the group on which many people most heavily depend, socially, emotionally and often financially. There comes a point at which, for some, prolonged and unavoidable separation from this group seriously inhibits their ability to live full and fulfilling lives.”[50]

Where the Government and authorities have serious concerns in relation to public security, deportation may be considered justified. As the European Court of Human Rights explained in the case of Al-Nashif v Bulgaria, the individual must be able to challenge the justification of the decision made against him on these grounds.[51] In the UK, the Special Immigrations Appeals Commissions considers these cases, and requires the Government to provide appropriate explanations of the reasons why the entry and residence of the individual would endanger national security.[52] -`

Conclusion

It is evident therefore that the right to family life assured by Article 8 ECHR is not an absolute right and can be qualified, although its impact on UK immigration law has undoubtedly been significant. Article 8 ECHR cannot be construed as granting a blanket right to family life in all cases; the particularities of each case must be examined in their entirety and distinguished from previous cases, which do, nevertheless, provide a valuable guide. Ultimately, however, the decision maker, which is the UK Government, or rather its organs in the form of the immigration authorities, has a wide margin of appreciation. Furthermore, expert legal commentators have asserted that the courts are likely to show “deference” to the decision makers, the immigration[53] authorities.  Although the law provides rejected non-EEA nationals with the ability to challenge immigration decisions, it also provides a number of reasons under which the authorities can justify their decisions, and the courts allow a wide interpretation of the law. Furthermore, the courts must balance the right to family life against the right to control the border and to restrict excess immigration, as well as to lace a priority on key issues such as national security. Nevertheless, each case is considered on the basis of its own particular facts, and there is not an application of any blanket policy, which would pre-determine a decision. This is flexibility is a key feature of English law and indeed has enabled its development in this area.

 Bibliography

Statute

Universal Declaration of Human Rights Article, 1948

European Convention of Human Rights and Fundamental Freedoms 1950

International Covenant on Civil and Political Rights 1966

Immigration Act 1971

Children Act 1989

Human Rights Act 1998

Anti-Terrorism, Crime and Security Act 2001

Nationality, Immigration and Asylum Act 2002.

EU Council Directive 2003/86/EC on the right to family reunification

EU Directive 2004/38/EC on the right of EU citizens and their family members to move and reside freely within the territory of the Member States

Immigration Rules Appendix FM: family members  Available at: < https://www.gov.uk/guidance/immigration-rules/immigration-rules-appendix-fm-family-members> Accessed 24/07/2018

Cases

Abdulaziz, Cabales and Balkandali v UK, ECtHR, 28 May 1983

Gül v Switzerland European Court of Human Rights, 19 February 1996

R v Secretary of State for the Home Department, ex p Gangadeen [1998] Imm AR 106.

R v Secretary of State for the Home Department, ex p Ahmed and Patel [1999] Imm AR 22

 R v Secretary of State for the Home Department, ex p Daly [2001] 2 WLR 1622 (HL) Para 27

Kehinde v Secretary of State for the Home Department [2001] UKIAT 00010.

Al-Nashif v Bulgaria European Court of Human Rights 20 June 2002

Huang & Kashmiri v the Secretary of State for the Home Department [2007] UKHL 11

AL (Serbia) v Secretary of State for the Home Department [2008] UKHL 42

Beoku-Betts v Secretary of State for the Home Department [2008] UKHL 39

References

Clayton, G. Immigration and Asylum Law, (Oxford: Oxford University Press, 3rd Ed. 2008)

Lambert, H. and Wallace, R. “Expert Submission on Family Reunification in UK Law to the Israeli Supreme Court”, U. of Westminster School of Law Research Paper No. (2008) 09-01

McGuiness, T. The UK’s refugee family: the right balance?

House of Commons Library. 28 November 2016, Number 07511

Refugee Action, Refugee family reunion – policy briefing, February

2016. Available at: <https://www.refugee-action.org.uk/wp-content/uploads/2016/10/briefing_-_refugee_family_reunion.pdf> Accessed 24/07/2018

Van Buerren, G. “Annual Review of International Law” in Andrew Bainham (Ed.) The International Survey of Family Law: 1996 (Martinus Nijhoff Publishers, 1996)

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[1] Universal Declaration of Human Rights Article, 1948, Article 16(3)

[2] International Covenant on Civil and Political Rights 1966 Article 23 (1)

[3] European Convention of Human Rights 1950, Article 8

[4] EU Council Directive 2003/86/EC on the right to family reunification

[5] Human Rights Act 1998

[6] McGuiness, T. The UK’s refugee family: the right balance?

House of Commons Library. 28 November 2016, Number 07511 (10)

[7] Refugee Action, Refugee family reunion – policy briefing, February

2016. Available at: <https://www.refugee-action.org.uk/wp-content/uploads/2016/10/briefing_-_refugee_family_reunion.pdf> Accessed 24/07/2018

[8]Immigration Rules Appendix FM: family members

 Available at: < https://www.gov.uk/guidance/immigration-rules/immigration-rules-appendix-fm-family-members> Accessed 24/07/2018

[9] Immigration Rules Part 8: family members. Available at: < https://www.gov.uk/guidance/immigration-rules/immigration-rules-part-8-family-members> Accessed 24/07/2018

[10] McGuiness, T. The UK’s refugee family: the right balance?

House of Commons Library. 28 November 2016, Number 07511 (17)

[11] Immigration Rules Part 8. Available at: < https://www.gov.uk/guidance/immigration-rules/immigration-rules-part-8-family-members> Accessed 24/07/2018

[12] McGuiness, T. The UK’s refugee family: the right balance?

House of Commons Library. 28 November 2016, Number 07511 (10)

[13] Gül v Switzerland European Court of Human Rights, 19 February 1996

[14] Gül v Switzerland European Court of Human Rights, 19 February 1996, Para.38.

[15] Van Buerren, G. “Annual Review of International Law” in Andrew Bainham (Ed.) The International Survey of Family Law: 1996 (Martinus Nijhoff Publishers, 1996) 1

[16] Ibid.

[17] Gül v Switzerland European Court of Human Rights, 19 February 1996 at 114.

[18] Lambert, H. and Wallace, R. “Expert Submission on Family Reunification in UK Law to the Israeli Supreme Court”, U. of Westminster School of Law Research Paper No. (2008) 09-01 (6)

[19] Ibid.

[20] Immigration Act 1971, Section 3(2)

[21] Lambert, H. and Wallace, R. “Expert Submission on Family Reunification in UK Law to the Israeli Supreme Court”, The Supreme Court of Israel in Jerusalem (2008) 09-01 (6)

[22] Immigration Act 1971, Section 3

[23] N (Kenya) v Secretary of State for the Home Department [2004] EWCA Civ 1094.

[24] Lambert, H. and Wallace, R. “Expert Submission on Family Reunification in UK Law to the Israeli Supreme Court”, The Supreme Court of Israel in Jerusalem (2008) 09-01 (6) (7)

[25] Chahal v United Kingdom [1996] 23 EHRR 413

[26] Ibid. at 464

[27] Van Buerren, G. “Annual Review of International Law” in Andrew Bainham (Ed.) The International Survey of Family Law: 1996 (Martinus Nijhoff Publishers, 1996) 4

[28] Children Act 1989 Section1

[29] R v Secretary of State for the Home Department, ex p Gangadeen [1998] Imm AR 106.

[30] Human Rights Act 1998.

[31] R v Secretary of State for the Home Department, ex p Ahmed and Patel [1999] Imm AR 22.

[32] Clayton, G. Immigration and Asylum Law, (Oxford: Oxford University Press, 3rd Ed. 2008) 238

[33] EU Directive 2004/38/EC on the right of EU citizens and their family members to move and reside freely within the territory of the Member States

[34] European Convention of Human Rights and Fundamental Freedoms 1950

[35] Human Rights Act 1998

[36] Human Rights Act 1998 Section 6 (1)

[37] European Convention of Human Rights 1950 Article 8(2)

[38] Abdulaziz, Cabales and Balkandali v UK, ECtHR, 28 May 1983, Para 65

[39] European Convention of Human Rights 1950 Article 14

[40] AL (Serbia) v Secretary of State for the Home Department [2008] UKHL 42 Para 29.

[41] Ibid.

[42] Huang & Kashmiri v the Secretary of State for the Home Department [2007] UKHL 11 Para.20.

[43] Abdulaziz, Cabales and Balkandali v UK, ECtHR, 28 May 1983, Para 62

[44] Ibid. Para 67

[45] R v Secretary of State for the Home Department, ex p Daly [2001] 2 WLR 1622 (HL) Para 27

[46] Kehinde v Secretary of State for the Home Department [2001] UKIAT 00010.

[47] Nationality, Immigration and Asylum Act 2002. Section 82

[48] Kehinde v Secretary of State for the Home Department [2001] UKIAT 00010.

[49] Beoku-Betts v Secretary of State for the Home Department [2008] UKHL 39

[50] Huang & Kashmiri v the Secretary of State for the Home Department [2007] UKHL 11 Para 18

[51] Al-Nashif v Bulgaria European Court of Human Rights 20 June 2002

[52] Lambert, H. and Wallace, R. “Expert Submission on Family Reunification in UK Law to the Israeli Supreme Court”, U. of Westminster School of Law Research Paper No. (2008) 09-01 (17)

[53] Lambert, H. and Wallace, R. “Expert Submission on Family Reunification in UK Law to the Israeli Supreme Court”, U. of Westminster School of Law Research Paper No. (2008) 09-01 (17)