- The existing Immigration Rules should be amended to make provision for discretionary applications.
- The Home Office guidance on applying discretion is positive but should be strengthened to include a presumption that other family members will be able to apply, and its use monitored.
- Children should be able to apply to bring relatives, including siblings, to the UK.
- Civil legal aid should be made available to assist in an application for family refugee reunion.
There are approximately 10,000 unaccompanied asylum seeking children across Europe.
Family reunion is extremely valuable for those who are able to bring relatives to the UK. It is not a right protected under the Refugee Convention but is found in the UNHCR handbook as a principle of family unity. It represents a safe and legal route for family members to come to the UK, and therefore is particularly valuable for children who would otherwise be unable to make a dangerous journey to join relatives. Family unity is a key priority for many refugees, and has been recognised by the UNHCR as a tool in preventing dangerous journeys to Europe.1British Red Cross, “We started life again”, integration experiences of refugees families starting life again in Glasgow, 2015 Family reunion is particularly important for children, with 13,950 of more than 21,000 visas being granted to children.2Melanie Gower, briefing paper The UK’s refugee family reunion rules: striking the right balance?, paper 07511, 22 June 2016
Currently those in the UK with recognised refugee status or humanitarian protection may apply for their family members to join them in the UK. The Home Office will consider applications from immediate family members. The Immigration Rules state that this includes spouses, civil partners or partners who were living together for two years prior to the refugee leaving and who remain in a relationship, and children who are:
- The child of the parent who has refugee status
- Under 18 at the date of application for reunion
- Not living an independent life
- Were part of the family unit of the person granted asylum status.
There is a discretion in guidance to go outside the Rules. On 9 June 2016, the Government agreed that this had “not been used a lot”.3Richard Harrington MP, 9 June 2016, Hansard vol 611, col 243 WH An application for family reunion is free of charge, but there is no legal aid available for these applications, which places those refugees relying on discretion in a difficult position. Since 2010, there have been 175 grants of family reunion outside the rules.4Melanie Gower, briefing paper The UK’s refugee family reunion rules: striking the right balance?, paper 07511, 22 June 2016
In a recent report, the Chief Inspector of Borders found that the process fails to recognise the difficulties that some individuals may have in obtaining evidence and documents in order to complete an application. Family members may themselves be displaced and unwilling or unable to approach national authorities for identity documents.5See An inspection of family reunion applications, the Chief Inspector of Borders and Immigration, September 2016.
Children and young people missing out
All family reunion must take into consideration the best interests of children and the need for a durable solution for refugee and asylum-seeking children. A durable solution is one which meets a child’s needs, takes into account a child’s views and leads to longer-term sustainable arrangement for the child.6What the United Kingdom Can Do to Ensure Respect for the Best Interests of Unaccompanied and Separated Children, UNICEF and UNHCR, 2016
It is axiomatic that families who have lived together before seeking asylum should be able to reunite, this includes children who live with extended family members, de facto adoptions, and young people who are dependent on, or who live with, family members after the age of 18. Although the Home Office guidance has been amended in 2016 to include consideration of exceptional circumstances or compassionate factors, the Immigration Rules have not been updated to reflect this.
While the updated guidance is welcome and will assist some family members who may otherwise be left alone in a third country, the grant of leave outside the Immigration Rules is for a fixed period, and is generally subject to a ‘No Recourse to Public Funds’ condition, it is not the same as the leave in line granted to family members who are able to demonstrate that they meet the Immigration Rules. It is also not in the spirit of section 55 Borders, Citizenship and Immigration Act to safeguard and promote the welfare of children. Although this duty only has specific application for children in the UK, Every Child Matters makes clear that the spirit of the commitment must be considered more broadly.
It is concerning that a young person may age out of the process and be ineligible under the Immigration Rules because they have turned 18. In the UK, the government has previously recognised that the asylum process is lengthy.7Richard Harrington, 9 June 2016, Hansard vol 611, col 238WH
The UK has one of the most restrictive policies on family reunion within the EU. The Family Reunification Directive, which the UK does not participate in, provides for direct ascending family reunion for children.
The House of Lords Report on Unaccompanied Children in the UK recommended that the Government reconsider the position on family reunion for unaccompanied children, and found “no evidence” that allowing children to reunite with ascending relatives and siblings created a perverse incentive, or anchor children.8House of Lords European Union Committee, Children in Crisis: unaccompanied migrant children in the EU, 2nd report of the Session 2016-17, 26 July 2016 This creates the perverse incentive of siblings and parents making their way independently to the EU through dangerous routes to benefit from the provisions of Dublin III. Equally, any restrictive application of the family refugee reunion criteria and a failure to apply discretion to cases involving those who do not fall under the categories of relative provided for in the immigration rules risks encouraging those individuals to travel to Europe to benefit from the Dublin provisions.
Although the UK is not a party to the directive, our view is that the failure to provide family reunion for children to be reunited with their adult family members is short-sighted, and does not include full consideration of a child’s best interests. The best interests of a child require consideration of a durable solution, which includes reunification with parents and family members.9UN Committee on the Rights of the Child, General Comment number 6, 2005, http://www2.ohchr.org/english/bodies/crc/docs/GC6.pdf
Child victims of trafficking are particularly negatively impacted by an absence of family reunion because they are unable to return to the countries of origin in many cases because of recognised risks, but are also unable to reunite with relatives through the limitation on ascending family reunion.
Legal Aid is not available for applications for refugee family reunion however these applications are often complex and require legal advice. In particular, the amendments to the Home Office guidance on Family Reunion sets out that a caseworker should consider exceptional circumstances or compelling factors outside the Immigration Rules.10Family Reunion: for refugees and those with humanitarian protection, Home Office guidance, v2.0, July 2016 p19 In order to do so, an applicant will need to make representations about their circumstances, and to demonstrate that a failure to consider factors outside the rules would amount to a breach of Article 8 European Convention on Human Rights. This is not a straightforward argument and requires a lawyer to assist.
Legal Aid should be made available for these applications on the basis of this complexity, and whether someone is able to present their case effectively. The additional risk to families where they apply for reunion and if unsuccessful are left in limbo should also be considered.11See An inspection of family reunion applications, the Chief Inspector of Borders and Immigration, September 2016.
One RCC member received an urgent request for advice from a refugee in the UK whose spouse and children had travelled from their home in North Africa to submit an application in Tunisia. The family reunion application was unsuccessful because the children’s documents were rejected and the family was then unable to travel home again without their passports. They were forced to use any income they had to continue to stay in Tunisia, and were struggling to meet their living expenses as the spouse was unable to work.
References [ + ]
|1.||↑||British Red Cross, “We started life again”, integration experiences of refugees families starting life again in Glasgow, 2015|
|2, 4.||↑||Melanie Gower, briefing paper The UK’s refugee family reunion rules: striking the right balance?, paper 07511, 22 June 2016|
|3.||↑||Richard Harrington MP, 9 June 2016, Hansard vol 611, col 243 WH|
|5, 11.||↑||See An inspection of family reunion applications, the Chief Inspector of Borders and Immigration, September 2016.|
|6.||↑||What the United Kingdom Can Do to Ensure Respect for the Best Interests of Unaccompanied and Separated Children, UNICEF and UNHCR, 2016|
|7.||↑||Richard Harrington, 9 June 2016, Hansard vol 611, col 238WH|
|8.||↑||House of Lords European Union Committee, Children in Crisis: unaccompanied migrant children in the EU, 2nd report of the Session 2016-17, 26 July 2016|
|9.||↑||UN Committee on the Rights of the Child, General Comment number 6, 2005, http://www2.ohchr.org/english/bodies/crc/docs/GC6.pdf|
|10.||↑||Family Reunion: for refugees and those with humanitarian protection, Home Office guidance, v2.0, July 2016 p19|