New immigration rules imposing more stringent conditions on the entry of spouses and partners of British citizens are causing alarm to migrants and human rights groups.
The amendments, which are to come into force on 29 November, require visa applicants seeking to join British or settled husbands, wives or civil partners in the UK to produce a certificate of competence in the English language (unless they are from listed English-speaking countries, have a degree taught in English, are 65 or over or physically or mentally incapable of meeting the requirement or demonstrate exceptional compassionate circumstances).
The government claims in the explanatory memorandum accompanying the rules that English-language test requirement is designed to promote the integration of foreign spouses and partners into UK society. But elsewhere, it has revealed that the purpose is to reduce numbers, estimating that it will lead to ten per cent fewer admissions of spouses and partners annually.
Application to refugees
The amended rules also apply all the normal requirements of the rules on family reunion – including not only the English testing, but also the need to demonstrate that sponsors can maintain and accommodate their families without recourse to public funds – to refugees who have naturalised as British citizens, who were formerly exempt from the maintenance and accommodation requirements. The rules achieve this by stating that refugees lose their status as refugees on naturalisation, taking them out of the ‘refugee family unity’ provisions of the rules. This amendment reverses a ruling of the Supreme Court,[1] which held in May 2010 that exemption from the maintenance and accommodation provisions accorded with one of the purposes of the Refugee Convention, which is ‘to protect and preserve the family unit of a refugee. The need for protection for a member of such a family unit is likely to be the same whether the sponsor obtains British citizenship or not. Moreover, the risk of persecution may be such that the need for protection for family members is particularly stark’, their Lordships held, only five months ago.
Grave concern has been expressed in a number of quarters about the rule changes. In the House of Lords, Liberal Democrat peer Baroness Williams pointed out that refugees have often had to seek asylum because of their support for democracy and human rights: ‘ To deny people with a such a powerful right that they have been accepted for citizenship of this country the ability to remain married to the people that they are married to, and bring up their children in a united family, is an extraordinary and last-minute kind of inhumanity.’ She added, ‘I would be very sorry to see the new coalition Government follow in a tradition that has always been profoundly qualified, profoundly hypocritical and profoundly populist in the worst sense of the word.'[2]
A parliamentary briefing paper from the Joint Council for the Welfare of Immigrants (JCWI) and the Immigration Law Practitioners’ Association (ILPA)[3] points out that it is far easier to learn English in the UK than abroad, and that spouses and partners are already required to learn English in order to obtain settlement in the UK, for which they normally apply two years after their arrival. If language skills are to be tested, that is the time to do it, not before entry, when costs might be prohibitive or courses unavailable. ‘Those people in non-English speaking zones of conflict, countries in which there have been natural disasters such as flooding, would struggle to access English language classes and testing facilities’, it argues. It also points out that ‘Approximately 60% of spousal visas are granted to women. Opportunities for women to learn English throughout the world vary considerably on account of levels of societal hostility to women’s education and/or availability of child-care facilities.’
Lord Avebury, introducing a motion of opposition in the House of Lords, noted that legal advice from leading human rights lawyers expressed concern that the amendments breach rights to non-discrimination and family life under the Human Rights Convention and the Race Relations Act.
Fees for appeals?
Meanwhile, the Ministry of Justice is proposing that those wishing to appeal a refusal of leave to enter or remain, or a negative decision on asylum or human rights, should be asked to pay a fee. Proposed fees are set at £65 for a consideration ‘on the papers’, and around £125 for an oral hearing. The consultation on the extension of fees closes on 21 January 2011.
Related links
View the Statement of Changes to the Immigration Rules, Cm 7944
The consultation on fees for appeals is available here