‘The Government believes that strong and stable families of all kinds are the bedrock of a strong and stable society’ – Conservative Party website
On 12 June the United Kingdom Border Agency (UKBA) published a document entitled ‘Statement of Intent: Family Migration’, in which it announced guidance which would bring in changes to the Immigration Rules. The majority of these changes then came into force on 9 July.
Central to the new measures is a narrower interpretation of the right to family life under Article 8 of the European Convention on Human Rights. Article 8 is in two parts: the first states that ‘Everyone has the right to respect for his private and family life, his home and his correspondence’; the second that: ‘There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and 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.’
Home Secretary Theresa May has decided that in the interests of Britain’s national security, public safety, economic well-being etc, new restrictions will be brought in for families who wish to bring relatives from other countries to join them, and that non-British citizens imprisoned here will be even more likely to be deported at the end of their sentences, irrespective of whether they have British children. Whether the courts agree with her interpretation remains to be seen.
May is already falling foul of the courts on a regular basis. On 18 July the Supreme Court ruled that the government had acted unlawfully by introducing other changes to immigration law by the ‘backdoor’ of policy and guidance, instead of by making substantive changes to the Rules themselves; however the actual effect of this seemingly damning judgment was negligible and within two days the Home Office had sorted out the glitch and was back to business as usual.
Earlier, on 20 June a judge at Exeter Crown Court ruled that the Home Secretary was guilty of contempt of court, after UKBA refused to act on an earlier court ruling to release an Algerian asylum seeker. May seems determined to plumb new depths in the seemingly endless race between the Conservative and Labour parties as to who can heap the most bile onto immigrants in an attempt to deflect blame for poverty and austerity away from themselves and their banking and business cronies. Not to be outdone, the following day Labour leader Ed Miliband announced that while in power his party had been soft on EU immigration and if re-elected would impose restrictions on numbers of foreign workers.
Double punishment
Successive governments have increasingly tightened the provisions whereby non-British prisoners can be deported at the end of their sentences. The Labour government’s Borders Act 2007 brought in a regime whereby, instead of the onus being on UKBA to consider whether foreign national prisoners should be deported or not, anyone from outside the European Economic Area (EEA) sentenced to prison for a year or more would automatically be deported at the end of their sentence with the onus on them to make out a case to the contrary. Such a case depended on proving either a real threat of persecution, torture or degradation, or that separation from family members settled in Britain would be ‘disproportionate’ to the crime they committed.
While immigration judges initially took a hard line on family life challenges to automatic deportation, a series of successful legal challenges ensued, compelling UKBA to pay far more attention to the effect that deportation of parents would have on their children. On 21 May 2011 the Upper Tribunal of the Immigration and Asylum Chamber ruled that ‘in relation to the proposed administrative removal or deportation of one or both of his non-national parents, the welfare of a child, particularly a child who is a British citizen, is a primary consideration’. This is the position which the government now seeks to attack.
The new regulations state that for anyone sentenced to four years or more in prison, family life and the best interests of any children concerned will only be considered to outweigh ‘criminality and the public interest in seeing the foreign national criminal deported’ in exceptional circumstances. Deportation will also be considered to ‘normally be proportionate’ for anyone sentenced to one year or more or who is considered a persistent offender. To challenge deportation a prisoner would have to prove that:
- Their relationship with a partner, who is a British citizen or has leave to remain, is genuine and ongoing; they have been in Britain legally for at least 15 years (not counting any time spent in prison); there are ‘insurmountable obstacles’ which prevent the partner leaving Britain to join the deportee.
Or:
- They have a genuine, ongoing parental relationship with a child who is a British citizen, or who has lived here for at least seven years; that it would be not be reasonable to expect the child to leave Britain; that there is no other family member who is able to care for the child here once its parent has been deported.
Or:
- They have lived in Britain for at least 20 years or, if aged under 25, have spent at least half of their life continuously here (excluding any period of imprisonment) and have no social, cultural or family ties with their country of origin.
It’s all about the money
And it is not just soft target, easily vilifiable ‘foreign criminals’ who are in the firing line. The government plans to ‘publish new guidance setting out a list of factors associated with genuine and non-genuine relationships’, but no matter how genuine your relationship, you will not get your husband, wife or children into Britain if you are poor.
There is now a minimum income threshold of £18,600 to sponsor the settlement of a non-EEA partner. Sponsoring a partner and one child under the age of 18 will mean you have to earn £22,400, with an additional £2,400 for each further child.
The minimum probationary period for settlement for a non-EEA partner will be five years. This measure, supposedly in place to ‘test the genuineness of the relationship’, applies irrespective of how long the couple have lived together prior to arrival in Britain.
Sick and elderly relatives from outside the EEA will only be able to join their families if they can prove both that, as a result of age, illness or disability, they require a level of long-term care that can only be provided by their relatives in Britain, and that they will not be using any British state facilities to provide it.
All this takes place as the Legal Aid, Sentencing and Punishment of Offenders Act 2012 removes legal aid for immigration cases and a new Crime and Courts Bill abolishes the right to a full appeal against the refusal of applications for visitors’ visas.
Learning to speak the Queen’s English
From October 2013, all applicants for settlement in Britain, whether they are joining family members or applying under the ‘points based system’ for economic migration and study, will be required to pass the ‘Life in the UK’ test, which is already in operation, and an English language speaking and listening qualification.
There is nothing wrong with encouraging people to learn the language of a country they are moving to live in and many British ‘expatriates’ abroad could do well to take up such study; however the system currently being implemented and expanded upon is compulsory and coercive and centres around instilling in would-be UK residents a phony and jingoistic sense of Britishness. Not only that, but the government insists on the acquisition of English language skills whilst simultaneously slashing the budget for ESOL teaching.
Deserving and undeserving families
All the current main political parties claim to be the ‘party of the family’ but the Conservatives, above all, have made a massive song and dance about how they want fathers to remain with mothers, parents to care for their children, and divorce and separation to be made more difficult. However, all this ‘family friendly’ stuff grinds to an abrupt halt when it comes to immigrants, prisoners or any other section of the working class at the sharp end of the capitalist crisis.
Nicki Jameson
