The UK is one of the most favoured immigration destinations in the world, due in part to the quality of life that is offered by the state. However, immigration into the UK has also become a very contested topic for debate, and there are a number of arguments that are now advanced against immigration. These arguments range from economic (immigrants as additional burden on welfare state) to social (assimilation and integration by non- EU immigrants). For its part, the British government has over the years tightened its immigration policy and rules in a number of steps taken by it. This policy has also been applied to family migration, wherein, post 2012, tough laws have been made by the government to limit migration by non-EU spouses or other family members. The new strict measures are a continuation of a process, in conformity with the notion that the family settlement law “has often been dominated by an overriding concern with preventing abuse of the system and the entry of undesirable migrants or of those who might become a burden on welfare state.” After 2012, a major change that has been made in the immigration rules is with respect to the minimum income threshold. After 9th July 2012, £18,600 per annum is minimum income required for an individual to be allowed entry into the UK. The requirement has come under severe criticism by immigration activists, NGOs.
Starting with the Aliens Act 1905, family migration policy has been a source of concern, wherein the government has tried to balance the rights of family life with other concerns. The Aliens Restriction Act 1914 and the Amendment Act 1919 placed more restrictions on immigration. The British Nationality Act 1948 allowed citizenship rights to ‘Citizens of the United Kingdom and Colonies’. The Immigration Act 1971 and the Rules made under it from time to time, provide the rules to be followed for the purpose of immigration or entry applications. As per this, both the Secretary of State and the Entry Clearance officers have been given powers to decide whether entry applications should be accepted or rejected. The factors based on which such applications are rejected or accepted include: age of the applicant, relationships and connections within the UK, history and antecedents of the applicant and criminal records, etc.
The factors described above are in addition to other requirements that are to be met if a person is to be allowed entry into the UK. The requirement for proficiency in English language was established by the National, Immigration and Asylum Act 2002 and under this Act, immigrants had to satisfy the authorities that they have the required proficiency in English language. Importantly, the Act also sought to prevent entry into the UK through sham marriages, for which, the Act became the first legislation in the UK to define sham marriages. The need for management of family immigration has come from the fact that there is now an ever increasing rate of applications in this sector. As one study points out, that in 2009 out of the 194, 780 grants of settlement issued, 39% were issued on the basis of marriage or civil partnership. Therefore, statistics demonstrate that marriage or civil partnership is an important reason for immigration into the UK.
A number of legislations have been passed to control and manage immigration into the UK. A single form of appeal in immigration decisions was provided by the Asylum and Immigration Act 2004. Moreover, a point based system was provided under the Immigration, Asylum and Nationality Act 2006. The Borders, Citizenship and Immigration Act 2009 provided that those residents who had spent more than 8 years in the UK could take advantage of naturalisation. Naturalisation through marriage could only be availed of if the applicant had been married for five years at the time of making the application.
The specific problems associated with migration are that there are instances of people abusing the system. This primarily happens through sham marriages between UK residents or citizens with non-EU nationals. On the other hand, rise in migration increases the economic burden on welfare state. The development of immigration policy is the prerogative of the state. The state may be reasonable in its aims to prevent undesirable immigration, whether the undesirability relates to quantity or quality of immigrants. State may legitimately apply screening measures for ensuring non-entry of undesirable immigrants. Undesirability could be due to their criminal past or such immigrants may have antecedents that make their entry into the UK undesirable. An example of such antecedents may be a past affiliation to a terror organisation. State may also legitimately provide minimum economic requirements for immigrants so that they do not become a burden on the state.
This essay discusses the issues related to immigration, which provide arguments for and against the government’s strict application of immigration policy. These issues include integration of non- EU spouses, limiting or controlling immigration for the purpose of protecting economy, preventing abuse of immigration policy and preventing sham or forced marriages, governmentality, the emergence of biological racism, and the control of immigration through poor/rich, deserving/ undeserving concepts.
In July 2012 some important changes were made to Immigration Rules that have allowed the government to create a stricter regime for immigration control. In some respects, there are contrasts in how the government deals with spouses, fiances, children and parents now, in comparison with the approach before 2012. In order to understand the difference between pre and post 2012 position with respect to family migration, it is important to consider the actual change that has been effected.
Before 2012, Part 8 was applied to entry applications into the UK. As per the changes made effective from 9 July 2012 onwards, instead of Part 8, now entry applications would be screened under Appendix FM. As per this, where the applicant is using grounds of private and family life, specific requirements would have to be satisfied by the applicant. These requirements relate to the period of residence to be shown by the applicant. The requirements of eligibility will differ for applicants in age groups of 18 years of age or less, between 18 years to 25 years, and applicants falling in the group of above 25 years. Those applicants who are over the age of 25 years must be residents in the UK for a minimum of 20 years to be eligible.
With respect to family migration, the Home Office has also clarified the scope of the new rules as follows: “First, we shall end the situation where those claiming the right to enter or remain in the UK on the basis of ECHR Article 8 –the right to respect for private and family life – do so essentially without regard to the Immigration Rules. The new rules will fully reflect the factors which can weigh for or against an Article 8 claim. They will set proportionate requirements that reflect, as a matter of public policy, the Government’s and Parliament’s view of how individual rights to respect for private or family life should be qualified in the public interest to safeguard the economic well-being of the UK by controlling immigration and to protect the public from foreign criminals. This will mean that failure to meet the requirements of the rules will normally mean failure to establish an Article 8 claim to enter or remain in the UK, and no grant of leave on that basis.”
The new rules relating to immigration have had a profound impact on entry sought on basis of marriage or family life. One of the major changes in the rules is with respect to maintenance and accommodation. Before the changes made effective in July 2012, Part 8 of the Immigration Rules were applied to applicants. What was required under this was that the applicant must be able to maintain himself and his dependants in an ‘adequate’ manner. Similarly, where there were dependant children in the application, the child also must be adequately maintained by the applicant parent or relative as per the provisions of para 297(v). Therefore, before 2012, the applicant was required to have adequate maintenance and accommodation. What was ‘adequate’ was an objective question, which depended on issues related to income support and benefits, such as housing, council tax, education and health. In Jehangara Begum and others (maintenance-savings)
Bangladesh, the savings of the applicant were also taken into consideration for determining the adequacy requirement. After 2012, the rules have changed and become stricter. After 9 July 2012, the rules require the meeting of the minimum financial threshold in order to ensure that the applicant or his dependants are able to maintain a standard of living without their being a burden on the state. There is no longer a need to interpret ‘adequate’ for the purpose of maintenance and accommodation, as the law specifically provides that an income of £18,600 per annum is the minimum financial requirement for entry to be accepted. Consequently, the new rules have led to a significant reduction in the number of family migration visas.
The impact of the new rules is also explained in MF v Secretary of State for the Home Department: “Prior to the new immigration rules (HC 194) introduced on 9 July 2012, cases involving Article 8 ECHR ordinarily required a two-stage assessment: (1) first to assess whether the decision appealed against was in accordance with the immigration rules; (2) second to assess whether the decision was contrary to the appellant’s Article 8 rights. The new immigration rules set out a number of mandatory requirements relating to claims reliant on Article 8 (“Article 8 claims”) which make clear that if such requirements are not met, the Article 8 claim under the rules must be refused. They also contain related provisions which confer discretion but it is discretion to grant leave in response to an Article 8 claim only if the new mandatory requirements are met.”
ECHR, Article 8 is no longer the only criteria for the determination of applications of entry. Now, other requirements are also to be met by the applicants. As mentioned earlier, one of the important changes made to the immigration law is in the financial requirements, which provide that earnings of £18,600 per annum is now required to be shown in order to get acceptance for the application of immigration. It may be noted that immigrants may place a burden on the state, if such immigrants are unable to attain a certain level of financial independence. UK is not the only European country to make such provisions and other EU states have also provided for similar requirements in their immigration laws. In Konstantinov v The Netherlands, the ECtHR has upheld the power of the state to make such laws or policies within their immigration regulatory framework.
The new rules that are made after 2012 are a continuation of the government policy on the immigration issue. The intimate and the familial relations have been regulated by the government, some argue, to regulate racial proximity. The visa is used by the government to manage intimate space of the family. These criticisms are not new. In 1979, when a new change was made to Immigration rules, requiring that the spouses should have met each other before making an application for entry, there was criticism of those rules as well. It was considered to be racially discriminatory as in some communities, spouses could marry without having met. In Abdulaziz, Cabales and Balakandali v UK, the ECtHR found that this requirement is not racially discriminatory. This requirement was also upheld in Mehreban v ECO Islamabad where the court demanded the spouses should at least know each other before making the application.
The criticisms against the strict and restrictive nature of the immigration law, are compounded by the fact that Appendix FM also gives wide discretionary powers to administrative authorities. Another problem with respect to the new rules is that the applicant must make the entry application from another country. The courts have also accepted the practicality and reasonableness of making an application outside the UK provided that there are no ‘insurmountable obstacles’ to family life of the applicant if the application is made from outside the UK.
Before July 2012, the government did try to create some restrictions on the family settlement where the non-EU spouses were concerned. The responses of the courts with respect to immigration cases at this time, were structured on the basis of ECHR rights. Article 8 of the ECHR specifically protects the right to the right to respect for his private and family life. Recently, in R (on the application of Quila and Another) v SSHD, the Supreme Court upheld article 8 rights as against the Secretary of State’s order to deny entry. The jurisprudence of the right as developed by the European Court of Human Rights became a guiding factor for the decisions of the English courts as well. Thus, in Maslov v Austria, the European court held that Article 8 protects ties that include “the totality of social ties between migrants and the community in which they live.” In the UK, the ECtHR reasoning was followed by the courts and tribunals, so that when immigration cases came before the courts, they sought to balance the immigration laws, rules and administrative decisions with the Article 8 jurisprudence. In MM (Tier 1 PSW; article 8-private life, the Tribunal held that the rights in Article 8 with respect to the totality of social ties do arise even in cases where the stay in UK for the individual has been temporary. The European court held in a case that it was not necessary for a married couple to have a settled home life before applying for Article 8 rights and that a family life within a real and genuine marriage is protected irrespective of not having shared a marital home life. The ECtHR also applied the principle to children who may not have lived with their natural or adoptive parents, in Berrehab v Netherlands. What has been important or essential in these cases is that there must be a pre-existing relationship. Therefore, in Lagos v Imoh, the Tribunal held that Article 8 would not apply unless there was a pre-existing relationship. In this case, an infant niece of a British woman was denied entry as she had only met her aunt once in her life. Adult siblings or adults and their parents, who have not met each other or shared a family life for a long time have also been denied the right to entry. However, the courts have usually decided the cases based on the individual merits of the case. Thus, in R (on the application of Zia and Fawad Ahmadi), the Court of Appeal held that a British resident had the right to look after his schizophrenic refugee brother.
The court may consider the question as to whether the applicant can have a family life outside the UK if the applicant is denied entry into the UK where his family is settled. In Abdelaziz, the court applied this test and held that in case such a family life could be had outside the territory of the UK, then the court would allow the Secretary’s order in refusing application. This is in line with the jurisprudence developed by the ECtHR. In Huang and Kashmiri v SSHD, the court considered and affirmed that the proper approach in such situations is whether or not the life of the family be reasonably expected to be enjoyed elsewhere as opposed to merely exist.
In general, before 2012, the courts have asked for a liberal interpretation of the provisions of immigration law as seen in Beoku-Betts v SSHD. Here, the courts have had recourse to ECHR jurisprudence under Article 8. The approach of the government has been to tighten immigration rules, despite the engagement of the ECHR provisions. The courts and tribunals have also responded by seeking a balance between national concerns and ECHR rights.
The basic concerns of the government and the courts with respect to marriage with non-EU spouses has been with respect to sham marriages. The concerns have been seen in the EU law as well, which went to the extent of defining sham marriage. The EU defined such a marriage as one, which is “concluded with the sole aim of circumventing the rules on entry and residence.” It is also important to understand that for a British resident or citizen there is no enshrined right to bring his family into the UK.
The Immigration Act 1971, s.1(4), allows the Secretary of State of Home Department to formulate rules on immigration or entry into the UK. The Secretary is not under any obligation to allow such admission into the UK. Therefore, a British resident’s family member can only gain entry or leave to remain in the UK, if the requirements under the Immigration Rules have to be followed.
The principal immigration route for the immigration from the non-EU states is through the points-based 5 tier visa system. The five 'tiers' require levels of eligibility for a visa in any of the five tiers. Tiers 1, 2, and 4 allow individuals to apply for a visa under another tier or even for Indefinite Leave to Remain. Theresa May, commenting on the increase in student immigration and its abuse, through the tier system, said that:
“But the arrangements we have been left with for students who graduate in the UK are far too generous. They are able to stay for two years, whether or not they find a job and regardless of the skill level of that job. In 2010, at a time when one in ten UK graduates were unemployed, 39,000 non-EU students with 8,000 dependents took advantage of this generosity.”
The UK is now considered to be becoming overcrowded and multicultural in the sense that the diversity itself is being described as super diversity, which refers to the interplay of multiple variables that are consequent of the presence of a number of small and new multiple-origin communities that are scattered. Super diversity is distinguished from diversity because super diversity is more complex in its dynamic interplay of variables. These variables may relate to faith, immigration status, class and education, within and between ethnic groups. The increasing immigration into the UK places a lot of burden on the social services of the nation and therefore, there is a need for balancing the rights of family integration in context of non EU spouses with the economic and social considerations for the country.
In the recent past, there has been a tremendous rise in immigration from non-EU nations. This is verified by the data from the Office of National Statistics for the years between 2010 to 2015. This period has seen a consistent increase in immigration as against a steady decrease in emigration. The Table 1 below, depicts the immigration statistics for this period of time.
|Emigration (non-EU countries)
Table: Immigration and Emigration trends, 2010-2015.
Immigration law is a prerogative of the state. The state considers social, political and economic effects of immigration policy before invoking it. Before 2012, the immigration policy has been more relaxed, although a consideration of the various laws and measures do show that the government has been tightening the immigration policy and making it more restrictive for some time now. The latest changes to the immigration policy in 2012 are a step in the same direction.
The need for the stricter immigration laws come from the fact that there is a growing immigration trend into the UK and the state is being placed under economic stress with the incoming immigrants. Moreover, there are concerns about super diversity and its implications for the welfare state. There are also legitimate concerns about abuse of the immigration process through sham marriages. Therefore, the state has responded to these concerns by strengthening the immigration control.
In order to ease the financial burden on the state, in 2012, the Immigration Rules were changed to require a minimum income threshold for applicants who wish to enter or remain in the UK. This also supports the statement that for immigration law and policy, the dominant and overriding concern is the need to prevent the abuse of the system. Moreover, the government may legitimately restrict entry of undesirable migrants and migrants who may become a burden on welfare state.
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