CALL TO ACTION: UN/EU complaint, 9:00PM Wed 9th Oct
This is intended as a template for you and anyone concerned with the infringement of human rights associated with the rules to use / add to / edit to their own needs when appealing to the UN and other bodies for action against the UK Government.
Below is an incomplete list of suggested recipients.
To find your MP, MEP and candidates standing in next year’s European election follow these links:
Westminster : http://www.writetothem.com/
Europe : http://www.europarl.europa.eu/meps/en/search.html?country=GB
Office of the United Nations High Commissioner for Human Rights CP@ohchr.org
Amnesty International's Secretary General email@example.com
To send your emails to the Third Committee of the UN follow this link:
Dear [recipient’s name],
I am writing to you more than a year after the introduction of amendments to the UK immigration rules which govern family migration, hereafter referred to as ‘the rules’, to draw your attention to growing evidence of their negative impact on British citizens’ right to respect for family life, among other rights primarily concerned with family life and children, as laid out in the national, European and international human rights instruments by which the UK is bound.
Since the introduction of the rules in July 2012, the government has assumed the position that the rules comply with Article 8 of the European Convention on Human Rights (ECHR), and individual assessment of Article 8 beyond the requirements set out in the rules is unnecessary, except in ‘truly exceptional circumstances’ in which ‘insurmountable obstacles to… continuing… family life together overseas’ can be demonstrated. Cases are therefore now decided without discovering their full merits.
The far-reaching, unjust and disproportionate effects on the human rights of British citizens as a result of the rules have been well documented by BritCits, in the Children’s Commissioner’s letter to Mr Mark Harper MP and by the All-Party Parliamentary Group (APPG) on Migration in its Family Migration inquiry, and I urge you to read the findings of these organisations.
In the following correspondence, I hope to lay out my concerns that the government brought in the rules in an improper manner, making their legitimacy questionable from the outset, and that the rules themselves are unjust and disproportionate, representing a failure on behalf of the state to uphold its responsibilities under the human rights treaty provisions which I have highlighted.
In response, I hope you will publically support the recommendations as laid out by the APPG on Migration in its Family Migration inquiry and take any other steps open to you to intervene and facilitate changes in the rules.
The unusual introduction of the rules
Under the Legislative and Regulatory Reform Act 2006 (LRRA), Ministers have the power to make legislative reform orders pending they adequately address the tests set out in Section 3 of the LRRA, which states:
Before a Minister may make a legislative reform order, he or she must take the following three steps:
- Consult widely with those affected by the proposals
- Lay before Parliament a draft order and explanatory document, and allow time for Parliamentary consideration
- Obtain Parliament’s sanction for making the order
Consult widely with those affected by the proposals
With regards to the first step, evidence that affected persons were widely consulted, and that the effects which would result from the rules, and their extent and magnitude, had been given proper consideration is lacking.
Furthermore, the Joint Committee on Human Rights (JCHR)―the most obvious of the Select Committees of the House for the rules to be referred to for scrutiny―was not consulted. Indeed, several Members of Parliament (MPs) voiced their concerns at the 19 June Commons debate that the matter had not been referred to the JCHR, including Dr Hywel Francis, Jeremy Corbyn and Yvette Cooper.
‘Given the complexity of the changes and their number, instead of our having a debate today, would it not be more appropriate to refer the matter for scrutiny to some of the many Select Committees of this House, including my own? As Chair of the Joint Committee on Human Rights, I raised the matter earlier this afternoon with its members, who agreed with me that this was a matter of considerable concern which should be referred to our Committee.’ (Dr Hywel Francis, 19 June 2012, Column 769 Hansard)
Lay before Parliament a draft order and explanatory document, and allow time for Parliamentary consideration
The rules, presented as a 45-page proposal, were put forward to Parliament on 13 June 2012, a week before the 19 June 2012 debate. It follows that this unusually short time frame for a matter so divisive and complex, and which covers such a broad range of immigrants, including family migrants, did not allow for an appropriate level of scrutiny and debate. Furthermore, only one or two MPs indicated they had read the material when prompted by John McDonnell at the 19 June 2012 debate, which suggest their ability to make an informed vote on the matter that day was impaired.
Obtain Parliament’s sanction for making the order
Despite much confusion at the 19 June 2012 debate regards what Parliament was being asked to agree to, the lack of consultation and the unusually short time frame MPs were given to consider the changes, it was resolved:
That this House supports the Government in recognising that the right to respect for family or private life in Article 8 of the European Convention on Human Rights is a qualified right and agrees that the conditions for migrants to enter or remain in the UK on the basis of their family or private life should be those contained in the Immigration Rules.
It can be argued that the legislative reform order which sought to amend the rules was illegitimate based on the fact it failed to adequately pass the tests set out in Section 3 of the LRRA. Full House procedures were not followed, the rules were not properly debated, the matter was not presented to the JCHR for consideration and MPs were not given adequate time to make a considered decision on the motion. John McDonnell referred to the process as,
“… an unacceptable attempt to bounce the House into agreeing to something that many of us have genuine concerns about.’ (19 June 2012, Column 783 Hansard)
Interference with family and children’s rights
The right to respect for family life is laid out in Article 8 of the ECHR, which states: ‘Everyone has the right to respect for his… family life.’ Government interference with this right, which is embodied in national law via Article 8 of the Human Rights Act (HRA), may be justifiable in certain circumstances which are laid out in the second part of the article; namely: national security; public safety; the economic well-being of the country; the prevention of disorder or crime; the protection of health or morals; or the protection of the rights and freedoms of others.
Claims to reside in the UK on the basis of Article 8 usually fall under the HRA or the ECHR. However, it is worth highlighting the UK’s other commitments to the family, as enshrined in the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Convention of the Rights of the Child (CRC). While the provisions laid out in these treaties have limited impact on domestic law, the UK nevertheless has a commitment―which is binding in international law―to abide by their conditions and comply with them as far as possible.
The freedom from interference with family is set out in Article 17 of the ICCPR, which states: ‘No person shall be subjected to arbitrary or unlawful interferences with his… family.’ As with Article 8 of the ECHR, limitations to Article 17 are permissible in certain justifiable circumstances. UN General Comment Number 16, which discusses the interpretation of Article 17, says, ‘State parties are under a duty themselves not to engage in interferences inconsistent with Article 17’.
Furthermore, the ICCPR sets out the right of marriage in Article 23, which stipulates, ‘The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.’ The second part of this article recognises, ‘The right of men and women of marriageable age to marry and to found a family.’ While limitations of Article 23 of the ICCPR are allowed, the UN General Comment 19 recognises that,
‘The right to found a family implies, in principle, the possibility to procreate and live together…. the possibility to live together implies the adoption of appropriate measures, both at the internal level and as the case may be, in cooperation with other States, to ensure the unity or reunification of families, particularly when their members are separated for political, economic or similar reasons.’
The right to family life is further protected through Article 10 of the ICESCR, which states: ‘The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society.’ Consistent with Article 23 of the ICCPR, Article 10 of the ICESCR requires parties to the Covenant to accord the family considerable protection and assistance. This is echoed in Article 16(3) of the Universal Declaration on Human Rights (UDHR).
The implications of the rules on the rights of children have been comprehensively covered in the Children’s Commissioner’s letter to Mr Mark Harper, dated 13 August 2013. This letter, among other things, explores whether the government is fulfilling its obligations under the CRC.
The letter recognises the rules’ infringement on the following rights: Article 3 (best interests of the child), Article 5 (parental guidance), Article 9 (the right not to be separated from parents), Article 10 (family reunification) and Article 18 (parental responsibilities and state assistance).
Furthermore, there is concern over the rules’ discriminatory effects on low-earners and other minority groups, such as women, those living in areas where the mean wage is incompatible with a city wage, young people and ethnic minorities. However, I have chosen not to pursue this aspect in this correspondence following Mr Justice Blake’s rejection that the financial requirements in the rules are discriminatory against particular groups in MM & Ors v Secretary of State for the Home Department [2-13] EWHC (1900) Admin ruling, which is not to say this aspect doesn’t warrant further investigation.
Justification of interference with Article 8 of the ECHR
For an interference to be justified it must:
- be ‘in accordance with the law’;
- pursue a legitimate aim;
- be ‘necessary in a democratic society’.
Be ‘in accordance with the law’
Although the interference with the right to respect for family life as authorised by the rules can be considered to be ‘in accordance with law’ in the sense that the rules are prescribed by law and are sufficiently accessible, it can be argued that they were bought in without following correct democratic or legislative amendment procedures, rendering them unlawful.
Pursue a legitimate aim
Interference with a person’s rights under Article 8 may only be done in pursuit of one of the six legitimate aims laid out in the second part of the article. The three justifications the Home Office has provided for the rules are:
- Stopping abuse;
- Promoting integration;
- Reducing the burden on the taxpayer.
Broader objectives which are frequently stated in government discourse on immigration policy are:
- Reducing net migration;
- Stopping foreign criminals from using Article 8 in order to remain in the UK.
Although the aims can be said to be legitimate, evidence suggests the rules are proving unsuccessful in achieving these aims. In particular, the financial requirement does not appear to be an effective way to stop abuse or to promote integration, and a growing number of cases suggest the separation of a couple and/or their children may increase rather than reduce the burden on the taxpayer.
The rules remain open to abuse by those who have access to cash savings of £62,500, which can be used to meet the financial requirement. Access to this amount is no indication of the applicant’s ability to contribute to society or to not become a burden.
The rules specify that the genuineness of the relationship must be proven, making the addition of a financial requirement unnecessary in order to establish whether a relationship is legitimate.
Under the rules, the applicant must now undergo a longer and more difficult route to Indefinite Leave to Remain (ILR). Rather than curb abuse, this lengthy time frame of insecure immigration status prevents some couples from fully enjoying family life, including having children, as they can’t be sure of their partner’s ability to remain in the UK.
The third-party sponsorship which was allowed under the previous rules is no longer permitted despite there being effective means by which to determine the credibility and the reliability of such support, leaving low income sponsors unable to avail of the support of family.
It is unclear how satisfactorily meeting the financial requirement assists a migrant with integration. The government may intend to ensure immigrants can afford the same standard of living as a British citizen as a means of promoting integration, in which case earnings in line with the minimum wage should be sufficient.
A stipulation of the rules which is more obviously aimed at integration is the English language requirement, which, like the financial threshold, has served to separate family members, sometimes indefinitely, due to the inflexibility of the rules, the time which may be needed to meet the requirement and the prohibitively high costs involved.
Indeed, it can be argued that the rules undermine, and even exacerbate, the ability of migrants to effectively integrate through periods of enforced separation.
Reducing the burden on the taxpayer
During the new five-year probation period, the family migrant has no recourse to public funds. This serves to protect the taxpayer. Further to this, sponsors of non-EU family members are required to sign a ‘sponsorship undertaking’ form (Form SU07/12) in which they agree to be financially responsible for the applicant.
Given these measures, the economic well-being of the public is largely protected, making the need for a financial requirement questionable. The government has not provided any evidence to suggest that family migrants claim benefits during the probationary period.
In a recent study on the effects of the rules, Middlesex University states non-EEA partners were not a burden on the welfare system under the old rules since they had the right to work and couldn’t claim benefits―as remains the case under the new rules. Previous studies have also shown the connection between immigration and welfare dependency to be limited.
Single parent families and persons forced to rely on state care instead of close family members are more likely to need help from the state, as are couples who are obliged to use savings to enter the UK via another European Union country or by another method, such as a time-limited visa. By creating more single parent families, more people who are dependent on state care and more people with reduced savings, it can be argued that the rules are increasing the burden on taxpayers.
Additionally, evidence to suggest the benefits bill will be reduced by excluding the non-EU partner is lacking since the predicted reductions almost solely relate to child benefits, which may still need to be paid regardless of whether the non-EU partner is resident in the UK or not, reports Middlesex University. Furthermore, the rules may be the cause of a significant loss in potential tax revenue, which could cost the UK up to £850 billion over 10 years according to Middlesex University.
Reducing net migration
According to the government, family migration accounted for 18 per cent of all non-EEA migration in 2010, based on data from the International Passenger Survey (IPS). However, this percentage includes persons not covered by the rules, such as students and workers who are the family dependants of temporary migrants, and is therefore misleading.
What this figure indicates, however, is that spousal visas constitute only a very small percentage of total immigration. It follows that the restrictions on family migration are making a statistically insignificant impact on the government’s target to reduce net migration. To cause family separations and exiles in achieving this minor reduction is therefore unnecessary and disproportionate.
Stopping foreign criminals from using Article 8 in order to remain in the UK
From the initial 19th June 2012 Commons debate, Theresa May has associated the curtailment of Article 8 with the ability of the government to deport foreign criminals. To prevent thousands of genuine families from settling in the UK in a bid to prevent foreign criminals, who make up only a small minority (Yvette Cooper suggested 185 deportation cases are granted appeal a year on family grounds at the 19 June debate), from using Article 8 to remain in the UK is unfair.
Non-criminal families are suffering through the government’s attempts to curb successful deportation appeals on Article 8 grounds. Yet Article 8 already allows for the deportation of such criminals ‘in the interests of national security’ or ‘public safety’. It seems unreasonable that the effectiveness of the UK Border Agency (UKBA) in removing illegal immigrants is not being pursued as part of this issue.
‘She [the Home Secretary] has chosen to interpret that right [to family life] in the narrow sphere of the individual—usually male—criminal who has served a sentence, left prison, is hopefully a reformed character and then asserts that he has a right to family life in the UK.’ Jeremy Corbyn (19 June 2012, Column 802 Hansard)
Be ‘necessary in a democratic society’
While the objectives of the rules may be desirable for the government to achieve, this does not mean they are necessary. The ECHR has interpreted this requirement as a ‘pressing social need’, with the stipulations for derogation (albeit in times of emergency) laid out in Article 15, which states that measures should be ‘strictly required’ by the situation, and proportionate to the legitimate aims.
Crucially, if there is an alternative, less intrusive way of achieving the same aims then it should be used. In the case of the rules, there is little doubt that the methods being used to maintain the objectives are not the least intrusive, making them unjustified. The High Court ruling in MM & Ors v Secretary of State for the Home Department [2-13] EWHC (1900) Admin put forward some less intrusive responses to the Home Office’s stated aims.
Furthermore, the Migration Observatory suggests 47 per cent of working British citizens do not meet the requirements to sponsor a non-EEA family member so the rules are effectively preventing nearly half the population from enjoying the right to respect for family life with regards to family life with a non-EU family member.
High Court ruling
The High Court ruling in MM & Ors v Secretary of State for the Home Department [2-13] EWHC (1900) Admin found the financial requirement of the rules to be unjustified and disproportionate. Mr Justice Blake ruled: ‘The consequences are so excessive in impact as to be beyond a reasonable means of giving affect to the legitimate aim.’
Conclusion: the level of interference is unjust and disproportionate
- The rules were bought in without following correct democratic or legislative amendment procedures
- The rules are ineffective in pursuing their legitimate aims
- The rules are disproportionate to their aims
- The rules do not follow the least intrusive method of achieving their aims
- The rules may be counterproductive in that they may end up costing the taxpayer
- The rules are having a negligible impact on the government’s target to reduce net migration
- Article 8 already has provisions for the removal of foreign criminals
When the interests of the society as a whole prevail over those of an individual, interference to rights is acceptable. However, even with interference, the core of the right may not be affected. The rules fail on the notion of necessity, which implies that the interference corresponds to a ‘pressing social need’ and that it is proportionate to the legitimate aim pursued.
In the case of the rules, the interference with Article 8 is unjustified and disproportionate, and therefore in breach of and incompatible with the UK’s obligations to uphold this right. Furthermore the rules may be counterproductive if the aims perused are not effectively achieved.
While the government is entitled to control immigration, any immigration rules implemented cannot, and should not, override statutory human rights obligations. I therefore urge you to support the recommendations of the APPG on Migration Family Migration inquiry and to make a public stance against the rules in addition to any other action open to you to intervene and facilitate change in the rules.