Family Immigration

The Border and Immigration Agency (BIA) has addressed the question of a person who marries outside the UK after being recognised as a refugee in the UK and then seeks entry clearance (a visa) for their spouse to join them in the UK.

The UK immigration rules make provision for a refugee to be reunited in the UK with the spouse they married before being recognised as a refugee, for example a spouse left behind in the country fled, or who fled to a third country. The rules cover pre-existing relationships with spouses, civil partners, unmarried/same-sex partners and minor children.

The provisions for pre-existing family members of refugees are more generous than the general UK immigration rules on bringing spouses or civil partners to the UK. For example, they do not do require that the spouse can be supported in the UK without the need to rely on ‘public funds’, support provided by the UK State to those unable to support themselves.  However, these provisions do not cover marriages that take place after the person has been recognised as a refugee.

The Border and Immigration Agency have set out their position in a letter to Mahmud Quayum of Camden Community Law Centre, who had asked for a clarification as to the position when a marriage takes place after the UK-based spouse has been recognised as a refugee.

The BIA states that they recognise there will be situations where a person marries in another country subsequent to being recognised as a refugee in the UK. The BIA states that these people would not be covered by the immigration rules. However, they could be considered under the family reunion policy, for example in compelling and compassionate circumstances, and also with reference to Article 8 of the European Convention on Human Rights (ECHR), which protects the rights to private and to family life.

The BIA explain that when an application is made to an Entry Clearance Officer (ECO) at a post abroad, it will first be considered under the immigration rules. Article 8 of the ECHR will be considered. If these do not apply, they will consider the case under the general immigration rules applying to any spouse wishing to join their partner in the UK (these are the rules that require people to demonstrate that they will have no recourse to public funds, etc.)

The letter goes on to state:

“Where a case may not be straight forward the ECO would have the discretion to refer case [sic.]  to the Home Office for consideration. A case would not be refused without consideration of all the relevant aspects of the case."

They note that the Family Reunion Policy (Asylum) has been removed from their website pending revision. However, they state that applications will continue to be considered in line with that policy until a new one is published. In the circumstances, it seems a pity that the policy currently being followed is no being made publicly available.

What will the revised policy say? One thing that many people will be watching out for is what will happen to children under 18 who are on their own in the UK and are recognised as refugees.  Where an adult is recognised as a refugee in the UK, the immigration rules make provision for that adult to be reunited with their minor children. But where a child is recognised as a refugee, there is no provision in the immigration rules for them to be reunited with their parents. It has been forcefully argued that this justification cannot be justified: whether the refugee is a child or an adult, the UK has accepted by recognising them as a refugee that they cannot live with their family in the country fled because of their well-founded fear of persecution there. If it is a right that in such circumstances the country of refuge should provide an opportunity for a parent to live in safety with his or her child, why is it not accepted that there should be an opportunity for a child to live in safety with his/her parent?

The Border and Immigration Agency (BIA) in the UK Home Office has issued new guidance to caseworkers on the long residence rule.

The Home Office has for a long time had a policy of allowing people who have been in the UK for a very considerable period to settle (get Indefinite Leave to Remain, ILR) in the country.  In April 2003, they made this a formal category under which people could apply to remain in the UK, by making it part of the UK Immigration Rules. 

On 8 May 2006 the Uniting American Families Act was reintroduced into the United States Congress.  This is a proposal for legislation, promoted by Senator Leahy and Representative Nadler, that would allow US citizens and residents to sponsor their same-sex partners to come to the United States of America for immigration purposes.  At the moment, there are no such provisions in the immigration law of the United States.

In the UK the position is very different.  Nearly four years ago, the UK passed the Civil Partnerships Act 2004.  This came into force on 5 December 2005. It provides an opportunity for same-sex couples to enter into a legal relationship.  Same-sex couples cannot marry in the UK, but the law gave civil partners very similar rights to married couples. Immigration law is no exception. The UK immigration rules for spouses (husbands and wives) and civil partners have been closely aligned.  Where the UK immigration rules referred to spouses, references to civil partners were inserted.

Some people will not have entered into a civil partnership in the UK, but in another country.  The UK recognises some, but not all, countries’ arrangements for unions between people of the same sex.  Either the unions are listed in a list made under the Civil Partnership Act 2004 or they meet general conditions for which provision is made in that Act.

The relationships listed (as of 10 May 2007) are:

•    Andorra - unio estable de parella
•    Australia (Tasmania) significant relationship
•    Belgium cohabitation légale, wettelijke sammenwoning, gesetzliches
     zusammenwohnen and marriage
•    Canada marriage
•    Canada (Nova Scotia) domestic partnership
•    Canada (Quebec) union civile
•    Denmark registreret partnerskab
•    Finland rekisteröity parisuhde , registrerad partnerskap
•    France pacte civile de solidarité
•    Germany Lebenspartnerschaft
•    Iceland staðfesta samvist
•    Luxembourg - partenariat enregistré, eingetragene partnerschaft
•    Netherlands geregistreerde partnerschap and marriage
•    New Zealand - civil union
•    Norway registrert partnerskap
•    Sweden registrerat partnerskap
•    United States of America (California) domestic partnership
•    United States of America (Connecticut) civil union
•    United States of America (Maine) domestic partnership
•    United States of America (Massachusetts) marriage
•    United States of America (New Jersey) domestic partnership
•    United States of America (Vermont) civil union

It is important not to assume that this list is reciprocal – just because the UK recognises civil partnerships from a particular country does not mean that that country will recognize UK civil partnerships for the purposes of its immigration laws.

UK immigration law also makes provision for couples, including same sex couples, who have not married or entered into a civil partnership. UK immigration law calls these people ‘unmarried partners’.    Such couples must have a relationship that is considered by the UK immigration authorities to be akin to marriage or a civil partnership and this normally requires the couple to have lived together for two years.

The UK Court of Appeal has considered the evidence to be provided by people under immigration control when a marriage or civil partnership breaks down because of domestic violence.

The House of Lords has recently given its landmark judgment in Huang; Kashmiri v SSHD [2007] UKHL 11. The case is absolutely fundamental to the way in which immigration courts will now have to interpret and apply obligations owed to those seeking entry or leave to remain in the United Kingdom on the basis that removal would breach their rights to family life under Article 8 of the European Convention on Human Rights, which protects the rights to family and private life.

With the substantial increase in fees charged for UK immigration and nationality applications, extra attention is being given to who does not have to pay fees or to the circumstances in which only one fee is payable for more than one application.

In many categories under the UK Immigration Rules, it is a requirement that the person coming to the UK can be supported without recourse to public funds. Public funds is a term for benefits paid to people in need by the state. It has a specific definition in the UK Immigration Rules.

On 1 April 2007 the fees charged for immigration applications in the UK were changed by the Border and Immigration Agency, previously called the Immigration and Nationality Directorate. The Border and Immigration Agency is the part of the UK Home Office dealing with immigration and nationality cases.

The UK government has proposed increasing the minimum age at which a person can come to the UK as the spouse of a person present or settled in the UK,  from 18 to 21. It wishes to consult on this proposal before deciding whether to implement it.

A recent judgment from the UK Court of Appeal highlights the difficulties that may arise where applications for entry clearance (a visa) or settlement are made on behalf of children who reach the age of 18 before their applications are decided by an Entry Clearance Officer at a British consular post abroad, or by the Home Office in UK, or before an appeal is heard by an immigration judge.