THE REFUGEES (FAMILY REUNION) (No 2) BILL – OPPORTUNITY FOR CHANGE

15 Mar 2018

Eleri Griffiths considers the issues arising under the current rules for refugee family reunion application, and the changes proposed by the Refugees (Family Reunion) (No. 2) Bill ahead of its second reading in the House of Commons on 16 March 2018.

Eleri is a pupil in the Immigration and Housing and Community Care teams. She is available for instruction from 12 April 2018.

The reunification of families dispersed by persecution, conflict and danger is a well-established value in both international refugee law i and domestic policy. ii It is not only fundamental to exercising the right to respect for family life, but central to the integration of a refugee within a state which is often unfamiliar and isolating to them.

The private members bill proposes amendment to the Immigration Rules by extending leave to family members of refugees and people granted humanitarian protection and re-facilitating provision of legal aid funding in such cases. In summary, it seeks to widen the pool of relatives which fall within the reunification provisions of the rules from the immediate ‘nuclear’ family i.e. spouse or civil partner and dependent children under 18, to include the wider family network, whilst also allowing protected children act as sponsors to their parents.

Issues with the current regime

Leave for some family members of recognised refugees or those with humanitarian protection is provided for under the existing Immigration Rules, but extends only to limited members of the immediate family.iii

Otherwise, unless reunification under Dublin Regulation III iv applies, leave will only be granted outside the rules on compassionate grounds.

Part 11 the Rules governs the grant of leave to remain for a spouse or civil partner of a person currently granted refugeev status or humanitarian protectionvi, who will ‘sponsor’ the application. This is provided that:

· the relationship began before the sponsor left the country of habitual residency to seek asylum (‘fled’),

· the relationship is genuine and subsisting and the couple intend to live together permanently,

· a marriage or civil partnership has taken place before the sponsor fled or the couple were living together in a relationship akin to marriage or civil partnership for 2 years or more before the sponsor fled.

A child under 18 may seek leave to enter or remain to join their refugee or protected parent if they were part of the family unit when the sponsor fled and has not formed an independent life, married, entered into a civil partnership or formed an independent family unit.vii Provision is also made in the rules for children under 18 to join non-parent relatives with leave to remain in similar circumstances but only where there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child’s care. viii

Whilst meeting the minimum recommended provision for family reunion set out by the UNHRC,ix the current limitation to immediate family members, does not realistically account for complex family dynamics which are often at play in cases of those seeking asylum in the UK. Some of those most disadvantaged by the current regime are arguably the most exposed to danger.

For example, an orphaned child may be cared for by an older sibling or adopted by extended family members or others in their community. Should their sibling then be granted asylum, he/she could not sponsor the orphaned child. Furthermore, save where the adoptive refugee parents are settled in the UK,x the orphaned child could only be reunited under the above provisions for non-parent relatives which requires serious and compelling family considerations whereas their adoptive siblings would simply be granted leave as a child. Thus, the most vulnerable of surviving children may again be displaced and alone.

Under the current regime, a person under 18, regardless of their status as a refugee or having humanitarian protection, cannot sponsor a family member, (including a parent) under the family reunion provisions. xi

Therefore, a child arriving unaccompanied in the UK, and granted asylum, cannot sponsor their parents joining them later. Unless leave outside the rules is granted, that child is placed in the position of having to remain in the UK without their parents, or leave, a position which is hard to justify having regard to the Secretary of State’s duty to safeguard and promote the welfare of children in the UK.xii

This also means that a child’s access to family reunion differs depending on whether they leave unaccompanied to seek asylum, or are left behind in danger to arrive later. Such inconsistency is illogical and unfair on both the child and their family.

Where families include children both under and over 18, a parent may find themselves torn between remaining in a dangerous situation but keeping the family together, or leaving an adult child behind as adult children are not included within the rules regardless of their dependency. An application would fall to be assessed outside the rules exceptional circumstances provisions, which lie entirely within the discretion of the decision-maker. If such leave is not granted outside the rules, the adult child will be refused. Whilst the Home Office Guidance suggests such scenarios may be considered sympathetically, xiii showing that remaining siblings have no other relatives to turn may be evidentially difficult. Moreover, if leave is likely to be granted in the majority of such cases in any event as a matter of policy, it begs the question why provision is not contained within the rules already rather than left as a matter of discretion.

Exceptional circumstances and compassionate factors

Whilst those who do not fall within the rules may seek leave outside them, this is restricted to exceptional or compassionate circumstances, which the Home Office Guidance itself refers to as ‘likely to be appropriate only rarely’. xiv However, the limited scope of the existing rules means that the situations where family members fall outside the rules are in fact unlikely to be rare. The Home Office guidance provides little assistance as to what may constitute exceptional or compassionate circumstances, other than that either requires “unjustifiably harsh consequences” for the applicant or their family. xv

It must be remembered that seeking asylum is forced migration, not a controlled scenario where individuals have time and resource to prepare an application or to secure provision, care and safety for those left behind. Yet, the current regime leaves families already in desperate circumstances having to make extraordinarily difficult decisions about diving their family with little, if any, certainty on whether they will be reunited at all. They place the fate of their family into the hands of individual decision makers which, being discretionary, can of course produce inconsistent results. This gives significant weight to the argument that more provision should be made within the rules which provide a clearer, more transparent route.

The changes

The proposed definition of “family member” extends the existing provision to also include:

· parents or adoptive parents, and

· adoptive children and siblings (including adoptive) under 18

· all children or siblings (including adoptive) under 25 who were under 18 or unmarried when their refugee parent or sibling fled.

The bill specifically sets out that references to adopting includes circumstances of de facto adoption, which means that those families who, understandably, have been unable to complete the formalities of adoption, will not be prejudiced.

The new rules would also mean that children could act as sponsors for their parents, redressing the prejudice faced by unaccompanied children who seek asylum first and cannot reunite with family under the rules, over those who must wait for their parents to obtain refugee/protection status before being reunited.

The bill does not go as far as to explicitly include older siblings, or grandparents, aunt or uncles. However, provision of a non-descriptive clause for “other persons as the secretary of state may determine” includes consideration of amongst other factors “the physical, emotional, psychological or financial dependency between a person granted refugee leave or humanitarian protection and another person”. This demonstrates a move from the key consideration being the title or description of the relationship to the effect and nature of it, which accounts more readily for differing family dynamics. In addition, those falling outside the prescribed classes do not then necessarily fall outside the rules, which may impact recourse to public funds and duration of leave.

It is true that the proposed changes extend help beyond the minimum set out at international and regional levels. However, the spirit of the convention is to provide a place where refugees can settle, and the broader definition is indicative of a move towards “promoting a comprehensive reunification of the family” as set out by the UNHRC near 40 years ago.xvi Either way, having regard to the deficiencies which the current regime exhibits, a broader approach it is certainly more consistent with the realities of refugee family reunification.

Legal aid

Since being removed, alongside other non-asylum immigration matters, from the scope of legal aid funding in the 2013 reforms, legal aid can only be made available for family reunion where Exceptional Case Funding is granted. The fact that family members are seeking to join recognised refugees is not, on its own enough. Without legal aid funding, an applicant must either pay privately, seek alternative funding, or most likely go it alone without representation. Demanding this demonstrates a fundamental misunderstanding of (a) the nature of these cases and (b) the support needs of refugees.

As discussed above, unlike other migrant applications, the events which give rise to these applications are largely forced and uncontrolled. Proving a relationship alone may require extensive research, obtaining and translating documents, preparing witness statements or obtaining DNA evidence. Cases can therefore be both legally and evidentially complex, extremely costly and take significant time. The current expectation is that individuals who are often vulnerable, have little knowledge of legal process, and have left everything, including funds, behind whilst fleeing their home country will be able to carry out such tasks, and in reasonable time.

That position is evidently unrealistic and the bill seeks to reverse the effect of LASPO on family reunion cases. If passed, this would come as great relief to those pursuing such applications. In practice, the financial criteria will still need to be met, but meeting the exceptional case funding criteria will no longer apply, granting more refugee families a better chance to reunite.

The Draft Bill can be found here. i UNHCR Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status § 181, EC Council Directive 2003/86/EC on rights to family reunification ii Home Office Policy Guidance: Family reunion: for refugees and those with humanitarian protection 29 July 2016 § 5. iii In all cases inside the rules, an applicant must already have entry clearance and cannot be a person who would be excluded from protection under article 1F the Refugee convention were they to claim asylum in their own right. iv Regulation (EU) No 604/2013 – Regulations determining the State responsible for deciding a protection claim lodged in an EU Member State by a third country national or stateless person. v IR r.352A vi IR 352FA (granted after 30.8.2005). vii IR 352D, 352FG (granted after 30.8.2005). viii IR 319X (Part 8) ix UNHCR Handbook § 181-188: 185 (Ch VI), EC Directive 2003/86/EC Preamble (9) x HO Guidance 2016 p.17 xi HO Guidance 2016 p.15 xii under section 55 Borders Citizenship and Immigration Act 2009. xiii HO Guidance 2016 p.19 xiv as above xv as above xvi UNHCR Family Reunification, Conclusion No. 24 (XXXII) [1981] § 5