Liberty's Response to the Home Office's Consultation on Family ...

Liberty’s <strong>Response</strong> <strong>to</strong> <strong>the</strong> <strong>Home</strong> Office’s
<strong>Consultation</strong> on Family Migration
Oc<strong>to</strong>ber 2011
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About Liberty
Liberty (The National Council for Civil Liberties) is one of <strong>the</strong> UK’s leading civil liberties
and human rights organisations. Liberty works <strong>to</strong> promote human rights and protect civil
liberties through a combination of test case litigation, lobbying, campaigning and
research.
Liberty Policy
Liberty provides policy responses <strong>to</strong> Government consultations on all issues which have
implications for human rights and civil liberties. We also submit evidence <strong>to</strong> Select
Committees, Inquiries and o<strong>the</strong>r policy fora, and undertake independent, funded
research.
Liberty’s policy papers are available at
http://www.liberty-human-rights.org.uk/publications/1-policy-papers/index.shtml
Contact
Isabella Sankey Rachel Robinson
Direc<strong>to</strong>r of Policy Policy Officer
Direct Line 020 7378 5254 Direct Line: 020 7378 3659
Email: bellas@liberty-human-rights.org.uk Email: rachelr@liberty-human-rights.org.uk
Sophie Farthing
Policy Officer
Direct Line 020 7378 3654
Email: sophief@liberty-human-rights.org.uk
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Introduction
1. Liberty welcomes <strong>the</strong> opportunity <strong>to</strong> respond <strong>to</strong> <strong>the</strong> latest in a raft of measures
introduced by this Government which will have a profound impact on non-EU foreign
nationals seeking <strong>to</strong> join, or remain with, close family members present and settled in <strong>the</strong>
UK, and on <strong>the</strong>ir British or UK resident family members. Sections 1-7 of <strong>the</strong> <strong>Consultation</strong>
contain a series of proposals purportedly aimed at cracking down on abuses of <strong>the</strong>
immigration system. These include plans <strong>to</strong> introduce many more obstacles <strong>to</strong>
settlement for all applicants, whe<strong>the</strong>r <strong>the</strong>ir relationship is accepted as genuine or not,
including more onerous English language requirements, longer probationary periods and
higher financial hurdles, including for dependant elderly people seeking <strong>to</strong> join UK based
relatives. The Government is also planning <strong>to</strong> remove appeal rights for those seeking <strong>to</strong>
visit families in <strong>the</strong> UK. Section 8 focuses on <strong>the</strong> right <strong>to</strong> respect for private and family
life as protected by Article 8 of <strong>the</strong> European Convention on Human Rights (ECHR) as
incorporated by <strong>the</strong> Human Rights Act 1998 (HRA) . Liberty is disturbed at <strong>the</strong> series of
misleading questions contained in section 8 which appear designed <strong>to</strong> give an
inaccurate impression of <strong>the</strong> current operation of Article 8 in immigration cases. This
response will deal first with <strong>the</strong> unfair assault on Article 8 before considering <strong>the</strong> impact
of planned changes <strong>to</strong> specific areas of <strong>the</strong> Immigration Rules.
Article 8: <strong>the</strong> right <strong>to</strong> respect for private and family life 1
2. Myths and misunderstandings abound about <strong>the</strong> effect of Article 8 of <strong>the</strong> ECHR,
particularly in immigration cases. Ra<strong>the</strong>r than entering in<strong>to</strong> an open and honest
discussion about <strong>the</strong> operation of this right, this consultation does little more than
perpetuate common misperceptions. The debate is now so clouded by inaccuracy that it
is necessary <strong>to</strong> look <strong>to</strong> <strong>the</strong> text of Article 8:
Everyone has <strong>the</strong> right <strong>to</strong> respect for his private and family life, his home and
his correspondence. There shall be no interference by a public authority with
<strong>the</strong> exercise of this right except such as is in accordance with <strong>the</strong> law and
is necessary in a democratic society in <strong>the</strong> interests of national security,
public safety or <strong>the</strong> economic well-being of <strong>the</strong> country, for <strong>the</strong>
1 Article 8 of <strong>the</strong> ECHR as incorporated in<strong>to</strong> UK law by <strong>the</strong> HRA.
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prevention of disorder or crime, for <strong>the</strong> protection of health or morals,
or for <strong>the</strong> protection of <strong>the</strong> rights and freedoms of o<strong>the</strong>rs.
3. First and foremost, Article 8 does not provide a guarantee of protection for family
life, even for a British national – it simply provides that <strong>the</strong> organs of state must show
respect for family life when making decisions which affect individuals. Secondly, Article 8
explicitly sets out wider social fac<strong>to</strong>rs which are <strong>to</strong> be placed in a balance and weighed
against <strong>the</strong> right <strong>to</strong> respect for family life. These fac<strong>to</strong>rs include <strong>the</strong> prevention of crime
and disorder, protection of <strong>the</strong> UK’s economic well-being and <strong>the</strong> protection of <strong>the</strong> rights
and freedoms of o<strong>the</strong>rs. 2 The Courts in this country have consistently stressed that <strong>the</strong>
family life of <strong>the</strong> individual can be compromised in order <strong>to</strong> fur<strong>the</strong>r <strong>the</strong> legitimate aim of
controlling immigration. 3 All that Article 8 demands is that decisions which will separate
families are lawful and proportionate. The former requirement is no more than a
requirement that <strong>the</strong> Government make decisions which have a basis in law, <strong>the</strong> latter,
put simply, means that arms of <strong>the</strong> state cannot use a sledge hammer <strong>to</strong> crack a nut:
<strong>the</strong>y must bear in mind <strong>the</strong> importance of family life <strong>to</strong> an individual and only interfere
with it where <strong>the</strong>re are o<strong>the</strong>r, more pressing, concerns.
4. The <strong>Home</strong> Secretary’s speech at this year’s Conservative party conference is a
sad reminder of <strong>the</strong> level of myth and misinformation surrounding <strong>the</strong> Human Rights Act
and particularly Article 8. In support of her argument that <strong>the</strong> Human Rights Act should
be scrapped, <strong>the</strong> <strong>Home</strong> Secretary cited examples of cases where Article 8 had been, in
her view, used and abused, including <strong>the</strong> case of an “illegal immigrant” who could not be
deported <strong>to</strong> Bolivia because he had a cat. Like so many of <strong>the</strong> s<strong>to</strong>ries which circulate
about <strong>the</strong> effect of <strong>the</strong> Human Rights Act, this one is entirely inaccurate. The Bolivian –
who was nei<strong>the</strong>r a criminal nor an illegal entrant – had been with his partner for four
years. He argued he should have benefited from a <strong>Home</strong> Office policy giving credit <strong>to</strong>
couples who had been <strong>to</strong>ge<strong>the</strong>r for more than two years. Both <strong>the</strong> initial Judge and <strong>the</strong>
Senior Immigration Judge who decided his case made clear that he should benefit from
that policy and be granted <strong>the</strong> right <strong>to</strong> remain. The <strong>Home</strong> Office representative at <strong>the</strong>
2 Article 8(2) of <strong>the</strong> ECHR.
3 See for example <strong>the</strong> decision of <strong>the</strong> House of Lords in Beoku-Betts v Secretary of State for <strong>the</strong>
<strong>Home</strong> Department [2008] UKHL 39 where it was noted that <strong>the</strong> Immigration Judge had correctly
directed himself <strong>to</strong> "consider whe<strong>the</strong>r <strong>the</strong> interference with <strong>the</strong> appellant's family rights, which
would obviously interfere with <strong>the</strong> family as a whole, is justified in <strong>the</strong> interest of controlling
immigration" (paragraph 12).
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appeal hearing conceded that <strong>the</strong> policy did apply. Joint ownership of a cat was one
small detail amongst many commonly given by couples seeking <strong>to</strong> prove a genuine
relationship.
5. Against this background it is important <strong>to</strong> take <strong>the</strong> opportunity <strong>to</strong> dispel some
o<strong>the</strong>r of <strong>the</strong> inaccuracies surrounding <strong>the</strong> operation of Article 8 of <strong>the</strong> Act. It has
been widely reported, and even suggested by <strong>the</strong> Prime Minister, that Learco Chindamo,
<strong>the</strong> Italian national who fatally stabbed headmaster Philip Lawrence in 1995, could not
be deported solely because of <strong>the</strong> protections afforded by <strong>the</strong> Human Rights Act. 4 In fact
Chindamo’s case was decided primarily on <strong>the</strong> basis of <strong>the</strong> EU Directive on Freedom of
Movement, which is in no way related <strong>to</strong> <strong>the</strong> protections afforded by <strong>the</strong> Human Rights
Act. 5 In ano<strong>the</strong>r very high profile case, <strong>the</strong> Human Rights Act has been blamed for
putting <strong>the</strong> British public at risk when an Iraqi man, Mohammed Ibrahim, convicted of
killing a young girl in a hit-and-run incident, was permitted <strong>to</strong> remain in <strong>the</strong> UK. What was
not reported was <strong>the</strong> fact that <strong>the</strong> <strong>Home</strong> Office had not sought Mr Ibrahim’s deportation,
ei<strong>the</strong>r at <strong>the</strong> time he was convicted or at <strong>the</strong> time he was released. It was not until 5
years later that deportation proceedings were commenced. During those five years Mr
Ibrahim had married and fa<strong>the</strong>red two children in this country – he had become
stepfa<strong>the</strong>r <strong>to</strong> two more. In finding that deportation would violate Article 8, <strong>the</strong> Immigration
Judge was heavily influenced by <strong>the</strong> best interests of <strong>the</strong> appellant’s innocent children.
He pointed out that if <strong>the</strong> <strong>Home</strong> Office had not delayed and deportation proceedings had
been brought right away, <strong>the</strong>re would have been very little <strong>to</strong> stand in <strong>the</strong> way of Mr
Ibrahim’s removal from <strong>the</strong> UK. 6
4 See, for example, a Daily Mail Article of 6 th Oc<strong>to</strong>ber 2008:
http://www.dailymail.co.uk/news/article-1068130/Free-The-headmasters-killer-deport-casebreach-right-family-life.html.
Speaking on BBC Radio WM David Cameron said: "He [Chindamo]
is someone who has been found guilty of murder and should be deported back <strong>to</strong> his country...
what about <strong>the</strong> rights of Mrs Lawrence or <strong>the</strong> victim?” “The fact that <strong>the</strong> Human Rights Act means
he cannot be deported flies in <strong>the</strong> face of common sense."
5 The Citizen’s Directive 2004.
6 See in particular paragraph 70 of <strong>the</strong> judgment which is available at:
http://www.bailii.org/uk/cases/UKUT/IAC/2010/B1.html: “<strong>the</strong> reason he has become entitled is <strong>the</strong>
Secretary of State for <strong>the</strong> <strong>Home</strong> Department's delay in making a lawful decision in relation <strong>to</strong> his
removal.” At paragraph 80 <strong>the</strong> Court reports: “<strong>the</strong> outcome might well have been different if <strong>the</strong>
process of removing <strong>the</strong> Respondent had begun before his family life had become so firmly
established.”
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6. Immigration cases are not <strong>the</strong> only context in which Article 8 is misrepresented.
In a recent speech <strong>the</strong> Prime Minister proclaimed that ‘phoney’ human rights concerns
would not prevent <strong>the</strong> publication of CCTV footage of those suspected of being involved
in this summer’s riots. The implication seemed <strong>to</strong> be that <strong>the</strong> Human Rights Act
prevented <strong>the</strong> use of CCTV footage <strong>to</strong> solve crime; <strong>the</strong> reality is that it is perfectly
compatible with Article 8 <strong>to</strong> publish images caught on CCTV for <strong>the</strong> purpose of
apprehending criminals.
7. Misleading allegations about <strong>the</strong> impact of Article 8 have long prevented an open
and honest debate about its operation. Whilst myths are peddled about <strong>the</strong> protections
offered <strong>to</strong> ‘foreign criminals’ by <strong>the</strong> Act, nei<strong>the</strong>r this Government nor <strong>the</strong> last has devoted
any time or effort <strong>to</strong> explaining <strong>the</strong> wider protections <strong>the</strong> Act offers <strong>to</strong> ordinary people.
Article 8 is important in many different contexts, not just in relation <strong>to</strong> <strong>the</strong> expulsion of
foreign nationals. Article 8 protects both private and family life. The concept of private life
includes things like respect for individual sexuality (so, for example, investigations in<strong>to</strong>
<strong>the</strong> sexuality of members of <strong>the</strong> armed forces engages <strong>the</strong> right <strong>to</strong> respect for a private
life); <strong>the</strong> right <strong>to</strong> personal au<strong>to</strong>nomy and physical and psychological integrity, i.e. <strong>the</strong>
right not <strong>to</strong> be physically interfered with and <strong>the</strong> right <strong>to</strong> respect for private and
confidential information.
8. Where Article 8 protects <strong>the</strong> right <strong>to</strong> respect for family life, it is most frequently
engaged when measures are taken by <strong>the</strong> State <strong>to</strong> separate family members, for
example by removing a child in<strong>to</strong> care, or refusing a parent entry clearance <strong>to</strong> join a
young child in <strong>the</strong> country. There are many immigration cases where Article 8 has been
relied upon by vulnerable people <strong>to</strong> prevent serious injustice. It is not difficult <strong>to</strong> find
examples.
The case of EM 7
EM fled <strong>to</strong> <strong>the</strong> UK from Lebanon following her divorce from her husband. During her
marriage her husband subjected her <strong>to</strong> violence, beating her, trying <strong>to</strong> throw her off a
balcony and trying, on one occasion at least, <strong>to</strong> strangle her. Her husband was
imprisoned for <strong>the</strong>ft from her fa<strong>the</strong>r's shop. He ended EM’s first pregnancy by hitting her
7 EM (Lebanon)v Secretary of State For The <strong>Home</strong> Department [2008] UKHL 64.
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on <strong>the</strong> s<strong>to</strong>mach with a heavy vase, saying he did not want children. On <strong>the</strong> day EM’s son
was born EM’s husband came <strong>to</strong> <strong>the</strong> hospital with his family <strong>to</strong> take <strong>the</strong> child away <strong>to</strong>
Saudi Arabia, but was prevented from doing so. When EM arrived in <strong>the</strong> UK her son had
reached <strong>the</strong> age of seven when, under <strong>the</strong> system that regulates <strong>the</strong> cus<strong>to</strong>dy of a child
of that age under Shari'a law in Lebanon, his physical cus<strong>to</strong>dy would pass <strong>to</strong> his fa<strong>the</strong>r
or ano<strong>the</strong>r male member of his family. Any attempt by EM <strong>to</strong> retain cus<strong>to</strong>dy of him would
be bound <strong>to</strong> fail because <strong>the</strong> law dictates that a mo<strong>the</strong>r has no right <strong>to</strong> <strong>the</strong> cus<strong>to</strong>dy of her
child after that age. She may or may not have been allowed supervised visits with her
son, but under no circumstances could he remain with her. EM and her son were
permitted <strong>to</strong> stay in <strong>the</strong> UK because <strong>the</strong> House of Lords found that family life between
mo<strong>the</strong>r and child would be destroyed if <strong>the</strong>y were returned <strong>to</strong> Lebanon with very serious
implications for both.
The case of Beoku-Betts 8
At <strong>the</strong> time of his appeal before <strong>the</strong> House of Lords, <strong>the</strong> appellant was a 29 year old
national of Sierra Leone. He arrived in <strong>the</strong> UK aged 18 following a military coup in his
country, during which <strong>the</strong> he had been subjected <strong>to</strong> a terrifying mock execution. 9 Initially
he was granted 12 months leave <strong>to</strong> enter as a student. The appellant’s sister was a UK
national by birth and <strong>the</strong> appellant’s fa<strong>the</strong>r was granted British citizenship. The
appellant’s mo<strong>the</strong>r and young sister were granted leave <strong>to</strong> remain in <strong>the</strong> UK. Having
completed his A-levels <strong>the</strong> appellant was granted permission <strong>to</strong> stay in <strong>the</strong> UK and study
law at university; he had mistakenly thought he would be permitted <strong>to</strong> remain until <strong>the</strong>
end of his studies - on realising his mistake <strong>the</strong> appellant applied for leave <strong>to</strong> remain on
account of his terrible experiences in Sierra Leone and his family life in <strong>the</strong> UK. Although
<strong>the</strong> Court believed <strong>the</strong> appellant’s account, <strong>the</strong>y found that <strong>the</strong> situation in Sierre Leone
had changed and that he would no longer be in danger. However <strong>the</strong> appellant was
allowed <strong>to</strong> remain mainly because, after his fa<strong>the</strong>r died of cancer and following <strong>the</strong>
family’s traumatic experiences in Sierra Leone, he was a huge source of emotional and
practical support for his family members in <strong>the</strong> UK, and in particular his 13 year old sister
and his mo<strong>the</strong>r whom he travelled home <strong>to</strong> be with most weekends during his
8 Beoku-Betts v Secretary of State for <strong>the</strong> <strong>Home</strong> Department [2008] UKHL.
9 Beoku-Betts v Secretary of State for <strong>the</strong> <strong>Home</strong> Department, paragraph 8.
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university studies and whom he lived with after leaving university. The appellant had no
family in Sierra Leone and Article 8 allowed <strong>the</strong> UK Courts <strong>to</strong> consider <strong>the</strong> effect <strong>the</strong>
appellant’s removal would have on his family members who had already suffered a great
deal.
9. Every time a Court makes a decision under Article 8 it strikes a balance between
<strong>the</strong> rights of <strong>the</strong> individual and <strong>the</strong> rights of society at large. It is <strong>the</strong>refore very strange
that <strong>the</strong> consultation paper asks whe<strong>the</strong>r requirements should be put in place, in <strong>the</strong>
context of family migration, <strong>to</strong> ‘reflect a balance between Article 8 rights and <strong>the</strong> wider
public interest in controlling immigration’ 10 : this balance is already an integral part of our
human rights framework. To demonstrate how this balancing act already works in
practice, it is useful <strong>to</strong> look back over some of <strong>the</strong> decisions of our Courts.
Spousal and o<strong>the</strong>r family settlement applications
10. Our Courts have been very clear that Article 8 does not grant foreign nationals
<strong>the</strong> right <strong>to</strong> reside with even close family members in <strong>the</strong> UK. 11 People with close family
members in this country whe<strong>the</strong>r a civil partner, husband, wife or young children are
frequently denied permission <strong>to</strong> remain in <strong>the</strong> UK; <strong>the</strong> balance is a careful one and all
relevant fac<strong>to</strong>rs must be taken in<strong>to</strong> consideration. The following examples clearly show
that Article 8 is not a carte blanche for foreign nationals seeking <strong>to</strong> continue <strong>the</strong>ir family
life in <strong>the</strong> UK:
The case of AB 12
In a 2009 case which reached <strong>the</strong> UK Court of Appeal, AB, a Somali national, sought
leave <strong>to</strong> remain in <strong>the</strong> UK on <strong>the</strong> grounds of family life. In 2005 AB’s husband fled
Somalia for <strong>the</strong> UK - he was granted leave <strong>to</strong> remain in <strong>the</strong> UK on humanitarian grounds
as a result of <strong>the</strong> security situation in Somalia. In <strong>the</strong> same year AB and her young
10 The <strong>Home</strong> Office <strong>Consultation</strong> on Family Migration: Question 34, page 60.
11 See, for example, Nkurunziza and O<strong>the</strong>rs v ECO, Immigration and Asylum Chamber of <strong>the</strong>
First-tier Tribunal (2010): “Article 8 does not entail a general obligation for a state <strong>to</strong> respect a
family’s choice of <strong>the</strong> country in which <strong>to</strong> conduct family life or <strong>to</strong> authorize family reunion in its
terri<strong>to</strong>ry.”
12 VW (Uganda) and AB (Somalia) v SSHD [2009] EWCA Civ 5.
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children left Somalia for neighbouring Ethiopia, where <strong>the</strong>y lived without permission and
in straitened circumstances. An Immigration Judge dismissed AB’s appeal against <strong>the</strong>
refusal of leave <strong>to</strong> enter this country. He found that <strong>the</strong> family could continue family life in
Ethiopia, albeit that none of <strong>the</strong> family members were legally entitled <strong>to</strong> be <strong>the</strong>re and that
this would cause ‘no more than a degree of hardship’. The Court of Appeal found that
this decision was compatible with Article 8.
The case of PT 13
PT, aged 76 and his wife, aged 65 were a Sri Lanken couple who had come <strong>to</strong> <strong>the</strong> UK
and claimed asylum in 2007, but had been refused leave <strong>to</strong> remain. PT suffered ill-health
related <strong>to</strong> his age. PT applied <strong>to</strong> remain in <strong>the</strong> UK on <strong>the</strong> grounds of his family life with
his daughter and grandchildren. PT’s adult daughter, who was settled and residing in <strong>the</strong>
UK, was a single mo<strong>the</strong>r who suffered from depression following separation from her
husband. PT and his wife moved in with <strong>the</strong>ir daughter in 2007 and <strong>the</strong> Court accepted
that <strong>the</strong> elderly couple provided significant support for her, both in terms of caring for
<strong>the</strong>ir grandchildren and o<strong>the</strong>r housekeeping support. The Court acknowledged that PT
and his wife were very much integrated in<strong>to</strong> <strong>the</strong> family life of <strong>the</strong>ir daughter and
grandchildren and that it was of “considerable benefit for <strong>the</strong> Appellant and his wife, <strong>the</strong>ir
daughter and <strong>the</strong>ir grandchildren <strong>to</strong> live under <strong>the</strong> same roof”, but never<strong>the</strong>less
concluded that <strong>the</strong>y should not be permitted <strong>to</strong> remain in <strong>the</strong> UK. An Immigration Judge
balanced <strong>the</strong> impact of <strong>the</strong> interference with family life against <strong>the</strong> need <strong>to</strong> maintain
immigration control, and found that removal would be reasonable and proportionate. In
2010 <strong>the</strong> UK Court of Appeal found that this decision was in accordance with Article 8.
The case of VN 14
VN was a 19 year old woman in full time education in Uganda. VN’s fa<strong>the</strong>r came <strong>to</strong> <strong>the</strong>
UK in 1990 and was granted exceptional leave <strong>to</strong> remain, he was granted indefinite
leave <strong>to</strong> remain in <strong>the</strong> UK in 2000. VN’s mo<strong>the</strong>r was unwell and as a result VN and her
bro<strong>the</strong>r resided with a family friend in Uganda. VN’s mo<strong>the</strong>r died of an AIDS-related
illness in 2003; after <strong>the</strong>ir mo<strong>the</strong>r’s death VN and her bro<strong>the</strong>r applied <strong>to</strong> join <strong>the</strong>ir fa<strong>the</strong>r
in <strong>the</strong> UK. Their fa<strong>the</strong>r was, at this time, a British national and resided in <strong>the</strong> UK with his
13 PT (Sri Lanka) v SSHD [2010] EWCA Civ 251.
14 VN (Uganda) v ECO [2008] EWCA Civ 232.
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two minor children who were both also British nationals. VN’s bro<strong>the</strong>r was granted leave
<strong>to</strong> enter <strong>the</strong> UK as he was under <strong>the</strong> age of 18 at <strong>the</strong> time of his application. VN’s
application was refused; this refusal was upheld by <strong>the</strong> Courts. The Courts accepted that
VN was still at school and financially dependant on her fa<strong>the</strong>r – it was fur<strong>the</strong>r accepted
that when VN’s bro<strong>the</strong>r travelled <strong>to</strong> <strong>the</strong> UK, she would not have any family members in
Uganda <strong>to</strong> whom she could turn for ei<strong>the</strong>r emotional or financial support. The Court
acknowledged that VN’s relationship with her bro<strong>the</strong>r had been particularly close but
ultimately concluded: “[s]he is now aged 19 and although this is still young and she will
still require <strong>the</strong> guidance and support of her fa<strong>the</strong>r or o<strong>the</strong>r responsible adult, <strong>the</strong>re was
no evidence before me why this could not be achieved through <strong>the</strong> same means as it
has been provided in <strong>the</strong> past – regular telephone calls and occasional visits.” The
refusal of VN’s application <strong>to</strong> join her family in <strong>the</strong> UK was found not <strong>to</strong> be in breach of
Article 8 in a decision upheld by <strong>the</strong> UK Court of Appeal in 2008.
The impact of an individual’s immigration his<strong>to</strong>ry
11. The range of fac<strong>to</strong>rs taken in<strong>to</strong> consideration by <strong>the</strong> Courts and <strong>the</strong> fact-sensitive
nature of decisions is obvious from <strong>the</strong> most cursory glance at <strong>the</strong> case law. It is also
important <strong>to</strong> note that <strong>the</strong> Courts do have regard <strong>to</strong> whe<strong>the</strong>r a person asserting Article 8
rights has been upfront with <strong>the</strong> authorities or tried <strong>to</strong> evade <strong>the</strong>m; an adverse
immigration his<strong>to</strong>ry will count against an applicant. 15 It fur<strong>the</strong>r counts against an
applicant if, at <strong>the</strong> time he formed family bonds in <strong>the</strong> UK, his immigration status was
precarious. 16 The example below shows that <strong>the</strong> Courts have been very willing <strong>to</strong> take
account of an individual’s immigration his<strong>to</strong>ry when making a decision about his right <strong>to</strong>
remain in <strong>the</strong> UK.
The case of Wray 17
Wray was a Jamaican national who had come <strong>to</strong> this country in 2002 on a false passport
15
See, for example R (on <strong>the</strong> application of Mark Wray) v Secretary of State for <strong>the</strong> <strong>Home</strong>
Department [2010] EWHC 3301 (Admin).
16
R (on <strong>the</strong> application of Mark Wray) v Secretary of State for <strong>the</strong> <strong>Home</strong> Department [2010]
EWHC 3301 (Admin).
17
R (on <strong>the</strong> application of Mark Wray) v Secretary of State for <strong>the</strong> <strong>Home</strong> Department [2010]
EWHC 3301 (Admin).
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at age 25. He applied <strong>to</strong> remain in <strong>the</strong> UK on human rights and asylum grounds, but
<strong>the</strong>se claims were rejected by <strong>the</strong> <strong>Home</strong> Office and <strong>the</strong> Courts. By <strong>the</strong> time removal
directions were issued for Wray in 2006, he had two children in <strong>the</strong> UK, one of which
was a UK national born <strong>to</strong> a British mo<strong>the</strong>r. Notwithstanding Wray’s family ties, <strong>the</strong>
Courts in this country held that he could be deported and this would not constitute a
violation of Article 8. A major consideration for <strong>the</strong> Court was <strong>the</strong> fact that, at <strong>the</strong> time
when Wray had forged a family life in <strong>the</strong> UK, both he and <strong>the</strong> British mo<strong>the</strong>r of his child
were aware of his uncertain immigration situation.
12. As shown by <strong>the</strong> case of AB, <strong>the</strong> Courts also routinely consider whe<strong>the</strong>r family
life can be carried out elsewhere. Question 34 of <strong>the</strong> <strong>Consultation</strong>, which asks whe<strong>the</strong>r
<strong>the</strong> requirements put in place for family migrants should reflect a balance between
Article 8 and <strong>the</strong> wider public interest, is highly misleading – nobody denies that <strong>the</strong> right
<strong>to</strong> respect for private life should be balanced against <strong>the</strong> interests of society as a whole,
and Article 8 provides <strong>the</strong> eminently sensible and carefully fashioned framework within
which this complex balancing exercise takes place.
Deportation
Question 35 of <strong>the</strong> <strong>Consultation</strong> asks whe<strong>the</strong>r <strong>the</strong> UK should be able <strong>to</strong> remove those
who have shown serious disregard for <strong>the</strong> laws of this country notwithstanding <strong>the</strong>
existence of family life in <strong>the</strong> UK. It is first of all concerning that a question regarding
deportation has made its way in<strong>to</strong> a consultation about family migration. This is a
worrying conflation of issues. The vast majority of immigration cases where individuals
call Article 8 in aid have nothing <strong>to</strong> do with criminality. When considering <strong>the</strong> very
separate issue of deportation, it is important <strong>to</strong> acknowledge that time and time again,
<strong>the</strong> Courts have stated that <strong>the</strong> UK has <strong>the</strong> power <strong>to</strong> expel foreign criminals in order <strong>to</strong>
maintain public order and protect society. 18 Unfortunately, as <strong>the</strong> case of Iraqi national,
Mohammed Ibrahim, referenced above, shows, <strong>the</strong> <strong>Home</strong> Office have not always acted
in a timely and effective fashion <strong>to</strong> remove those liable <strong>to</strong> deportation. Administrative
inaction allows family ties <strong>to</strong> develop and streng<strong>the</strong>n in <strong>the</strong> UK. If <strong>the</strong> <strong>Home</strong> Office
18 The existence of <strong>the</strong> power <strong>to</strong> deport on public good grounds based on a past criminal
conviction has long existed, see for example R v Immigration Appeal Tribunal, ex p Florent [1985]
Imm AR 141, CA.
11

wishes <strong>to</strong> see effective removals of foreign national offenders, it should first ensure that
its procedures are reliable and efficient. Surely <strong>the</strong> time <strong>to</strong> seek <strong>the</strong> removal of Mr
Ibrahim should have been immediately on his conviction, before he had any substantial
family ties in this country.
13. It is fur<strong>the</strong>r unfair and inaccurate <strong>to</strong> attribute barriers <strong>to</strong> deportation solely <strong>to</strong> <strong>the</strong>
Human Rights Act. Decisions <strong>to</strong> deport are complex and multi-faceted – this was <strong>the</strong>
case long before <strong>the</strong> Human Rights Act was passed. The Immigration Act of 1971
provides for deportation <strong>to</strong> take place where conducive <strong>to</strong> <strong>the</strong> public good and until
recently, <strong>the</strong> Immigration Rules provided for a balance <strong>to</strong> be struck between <strong>the</strong> wider
public interest and compassionate individual circumstances, with <strong>the</strong> <strong>Home</strong> Secretary
required <strong>to</strong> take in<strong>to</strong> account, for example, <strong>the</strong> length of an individual’s residence in <strong>the</strong>
UK, an individual’s character, conduct and employment record and <strong>the</strong>ir domestic
circumstances. The very considerations taken in<strong>to</strong> account by judges under Article 8
were influential in decision making long before <strong>the</strong> Human Rights Act came in<strong>to</strong>
existence. They are <strong>the</strong> kind of considerations which fairness, decency and common
sense demand be taken in<strong>to</strong> account before an individual is removed from this country.
Notwithstanding <strong>the</strong> protections enshrined in <strong>the</strong> Human Rights Act, <strong>the</strong> Immigration
Rules were amended in 2006 <strong>to</strong> introduce a presumption that where an individual is
convicted of a criminal defence, he should face deportation. Fur<strong>the</strong>r in legislation
introduced in 2007 this presumption was placed on a statu<strong>to</strong>ry footing. It is <strong>the</strong> law of this
country that an adult non-EU foreign national sentenced <strong>to</strong> imprisonment of 12 months
or more must be deported, unless <strong>the</strong> decision <strong>to</strong> deport would be unlawful, or would
represent a disproportionate interference with family life. 19 Fur<strong>the</strong>r any person of 17
years or over who does not have <strong>the</strong> right of abode and who is convicted of an offence
for which he is liable <strong>to</strong> a cus<strong>to</strong>dial sentence may be recommended for deportation by a
<strong>the</strong> criminal court which has <strong>the</strong> power <strong>to</strong> sentence him. 20 There is <strong>the</strong>n already a strong
presumption in favour of deportation on our statute book. It is difficult <strong>to</strong> see what more
could be done <strong>to</strong> show <strong>the</strong> UK’s condemnation of criminality by foreign nationals, short
of stripping <strong>the</strong>m and <strong>the</strong>ir innocent families of <strong>the</strong>ir human rights al<strong>to</strong>ge<strong>the</strong>r.
19 UK Borders Act, ss32-33.
20 Immigration Act 1971, sections 3(6) and 6.
12

14. It is true that <strong>the</strong> existence of family life is one fac<strong>to</strong>r <strong>to</strong> be taken in<strong>to</strong> account
when considering whe<strong>the</strong>r <strong>to</strong> deport an individual who has committed a criminal offence.
So, for example, if <strong>the</strong> Canadian fa<strong>the</strong>r who is <strong>the</strong> sole carer for young children with
British citizenship commits an offence in this country, <strong>the</strong> <strong>Home</strong> Office and <strong>the</strong> Courts
are required <strong>to</strong> consider <strong>the</strong> impact of removal on his innocent children. It is not, by any
means, a decisive fac<strong>to</strong>r, but would we really wish <strong>the</strong> rights of <strong>the</strong> children in this
example <strong>to</strong> have no bearing on <strong>the</strong> decision? Likewise <strong>the</strong> offender who came <strong>to</strong> <strong>the</strong> UK
aged 2 and knows no o<strong>the</strong>r culture and way of life than that offered by <strong>the</strong> UK. Fairness
demands that his experience of life and his strong family ties in <strong>the</strong> UK are taken in<strong>to</strong>
account in <strong>the</strong> decision making process. Whilst <strong>the</strong>se fac<strong>to</strong>rs are important, examples of
how <strong>the</strong> Human Rights Act operates in deportation cases help <strong>to</strong> demonstrate that it
does not provide a carte blanche for foreign criminals with UK based families <strong>to</strong> remain
in <strong>the</strong> country.
The case of Lee 21
In March this year <strong>the</strong> UK Court of Appeal considered <strong>the</strong> case of a Jamaican national
living in <strong>the</strong> UK. He had two daughters: one aged eight and one aged three. Both were
British nationals residing with <strong>the</strong>ir British mo<strong>the</strong>r in <strong>the</strong> UK. Lee was convicted of a
drugs offence and <strong>the</strong> <strong>Home</strong> Secretary sought his deportation. The Court found that
deporting Lee would be consistent with Article 8 notwithstanding his family life in <strong>the</strong> UK.
They <strong>to</strong>ok in<strong>to</strong> account various fac<strong>to</strong>rs such as <strong>the</strong> fact that both Lee and his British wife
knew, in advance of starting a family in <strong>the</strong> UK, that Lee was not legally present in <strong>the</strong>
country. The Court was also influenced by <strong>the</strong> fact that Lee had spent his formative
years in Jamaica, and considered that he still posed some risk <strong>to</strong> <strong>the</strong> public in terms of
<strong>the</strong> possibility of his reoffending. In light of all <strong>the</strong>se fac<strong>to</strong>rs, it was decided that <strong>the</strong> Lee
could be deported <strong>to</strong> Jamaica notwithstanding his family ties in <strong>the</strong> UK.
The case of JO 22
JO was a Ugandan national who came <strong>to</strong> <strong>the</strong> UK aged 4. He was orphaned at age 8 and
became homeless before he reached <strong>the</strong> age of 18. Aged 20 he was convicted of drug
offences and of possessing a firearm. Although JO regarded <strong>the</strong> UK as his home and
had blood relatives in <strong>the</strong> country, <strong>the</strong> UK Courts <strong>to</strong>ok a very serious view of JO’s
21 Lee v Secretary of State for <strong>the</strong> <strong>Home</strong> department [2011] EWCA Civ 348.
22 JO (Uganda v SSHD [2010] EWCA Civ 10.
13

offending behaviour and an Immigration Judge found that <strong>to</strong> deport him would be
proportionate in all <strong>the</strong> circumstances of <strong>the</strong> case. In 2010, <strong>the</strong> UK Court of Appeal
upheld this decision which it found did not violate Article 8.
The case of Onur 23
Onur was a Turkish man who came <strong>to</strong> <strong>the</strong> UK aged 11. At age 30 he appealed <strong>the</strong>
decision of <strong>the</strong> <strong>Home</strong> Secretary <strong>to</strong> deport him, following his conviction for a number of
offences including robbery. Although <strong>the</strong> appellant had a child in <strong>the</strong> UK and was in a
relationship in this country, <strong>the</strong> Courts found that it would not be a violation of Article 8
for him <strong>to</strong> be deported from <strong>the</strong> UK. Amongst o<strong>the</strong>r fac<strong>to</strong>rs, <strong>the</strong> UK Courts considered
<strong>the</strong> seriousness of Onur’s offending behaviour and <strong>the</strong> fact that his children were at an
age where <strong>the</strong>y could be expected <strong>to</strong> adapt <strong>to</strong> life in Turkey. This decision was upheld by
<strong>the</strong> Court of Human Rights. 24
15. Question 36 offers, once again, an entirely misleading picture of <strong>the</strong> way
immigration decisions are made in this country. The <strong>Home</strong> Office asks “if a foreign
national has established family life in <strong>the</strong> UK without an entitlement <strong>to</strong> be here, is it
appropriate <strong>to</strong> expect <strong>the</strong>m <strong>to</strong> choose between separation from <strong>the</strong>ir UK based spouse
or partner and or continuing <strong>the</strong>ir family life <strong>to</strong>ge<strong>the</strong>r overseas?” As <strong>the</strong> case-law clearly
shows, <strong>the</strong> Courts already routinely consider whe<strong>the</strong>r UK based family members can join
a foreign national in <strong>the</strong>ir country of origin – this is already a crucial part of <strong>the</strong> decision
making process. 25 The hardships which would be faced by family members are weighed
against <strong>the</strong> wider social interest in deportation and <strong>the</strong> courts decide whe<strong>the</strong>r family
members can reasonably be expected <strong>to</strong> move. 26 This test is strong, but flexible enough
<strong>to</strong> allow a judge <strong>to</strong> make sensible distinctions between very different cases. Take for
example, <strong>the</strong> case of an American offender married <strong>to</strong> ano<strong>the</strong>r American national – both
have recently come <strong>to</strong> <strong>the</strong> UK and have no o<strong>the</strong>r family members in this country.
Contrast with <strong>the</strong> case of a Chinese national with a number of young children who are all
British nationals, have never been <strong>to</strong> China and are all in full-time education. The law, as
it stands, is flexible enough <strong>to</strong> deal with cases as radically different as <strong>the</strong>se two
examples where fac<strong>to</strong>rs such as someone’s duration in <strong>the</strong> UK; ability <strong>to</strong> speak <strong>the</strong>
23 Onur v UK (2009) 49 EHRR 38.
24 The European Court of Human Rights.
25 See, by way of example, VW (Uganda) and AB (Somalia) v SSHD [2009] EWCA Civ 5.
26 See JO (Uganda) [2010] EWCA Civ 10.
14

language if deported elsewhere etc should all be considered. One fac<strong>to</strong>r notably absent
from consideration in <strong>the</strong> consultation is <strong>the</strong> importance of <strong>the</strong> family life of innocent
family members of those facing removal from <strong>the</strong> UK.
16. The charge leveled at Article 8 is that it allows dangerous foreign criminals <strong>to</strong>
play <strong>the</strong> system and avoid deportation. This is not true. The strength of Article 8 is that
all relevant fac<strong>to</strong>rs will be weighed in <strong>the</strong> balance when a person’s deportation is being
considered: <strong>the</strong> threat <strong>the</strong>y pose, <strong>the</strong> seriousness of <strong>the</strong>ir offence, how long <strong>the</strong>y have
been in <strong>the</strong> UK, whe<strong>the</strong>r <strong>the</strong>y have genuine and longstanding family ties etc. Is it not
right that <strong>the</strong> courts consider <strong>the</strong> rights of children who have no control over whe<strong>the</strong>r
<strong>the</strong>ir parents have committed offences? Or that someone who has been in <strong>the</strong> UK
almost since birth has <strong>the</strong>ir family connections taken in<strong>to</strong> account? You don’t need <strong>to</strong>
tamper with <strong>the</strong> protection of fundamental rights and freedoms <strong>to</strong> ensure that those who
pose a risk and have no right <strong>to</strong> be here should not be allowed <strong>to</strong> stay. More efficiency in
<strong>the</strong> system would safeguard against this. Sadly <strong>the</strong> <strong>Home</strong> Office has proved unwilling <strong>to</strong>
look <strong>to</strong> its own role in frustrating deportation, choosing instead <strong>to</strong> make <strong>the</strong> Human
Rights Act <strong>the</strong> scapegoat for public dissatisfaction.
O<strong>the</strong>r Specific changes <strong>to</strong> <strong>the</strong> Immigration Rules
17. In a recent speech <strong>the</strong> Prime Minister stressed his commitment <strong>to</strong> <strong>the</strong> family, his
message was clear; a “family test” should be applied <strong>to</strong> all domestic policy, “if it
undermines commitment, if it tramples over <strong>the</strong> values that keep people <strong>to</strong>ge<strong>the</strong>r, or
s<strong>to</strong>ps families from being <strong>to</strong>ge<strong>the</strong>r, <strong>the</strong>n we shouldn't do it.” 27 Liberty agrees. It is
<strong>the</strong>refore deeply disappointing that <strong>the</strong> present proposals for reform of <strong>the</strong> family
migration system show such scant regard for <strong>the</strong> plight of genuine families. Is <strong>the</strong> <strong>Home</strong>
Office exempt from applying <strong>the</strong> Prime Minister’s ‘family test’? While <strong>the</strong> UK is, of
course, entitled <strong>to</strong> control its borders, planned reforms <strong>to</strong> <strong>the</strong> Immigration Rules outlined
at Sections 2 <strong>to</strong> 7 of <strong>the</strong> <strong>Home</strong> Office <strong>Consultation</strong> variously disregard <strong>the</strong> protections
against abuse already built in <strong>to</strong> law and policy and will extend far beyond those
individuals seeking <strong>to</strong> play <strong>the</strong> system, hitting genuine families, including many British
nationals.
27 Prime Minister’s speech, Witney, 15 th August.
15

Preventing sham marriages
18. Liberty believes that <strong>the</strong> aim of reducing marriages of convenience and o<strong>the</strong>rwise
exposing disingenuous applications for settlement is a valid one. It fur<strong>the</strong>r goes without
saying that we must not <strong>to</strong>lerate practices such as forced marriage and domestic
violence which represent serious human rights violations. In a world divided along
national borders it is necessary <strong>to</strong> have a clear set of rules for those seeking <strong>to</strong> settle in
ano<strong>the</strong>r state and it is of course reasonable <strong>to</strong> demand that spousal migration is firmly
linked <strong>to</strong> close ties of love and affection. Our concern, however, is that many of <strong>the</strong>
proposals set out in <strong>the</strong> consultation will affect genuine couples.
19. The consultation paper considers <strong>the</strong> value of introducing tightly defined criteria
<strong>to</strong> help decision makers assess <strong>the</strong> genuiness of a relationship. A number of <strong>the</strong>
suggested considerations already form a part of <strong>the</strong> assessment criteria under <strong>the</strong>
Immigration Rules and operational policy guidance. Under paragraph 281 of <strong>the</strong>
Immigration Rules before a spouse or civil partner is granted leave <strong>to</strong> enter with a view
<strong>to</strong> settlement in <strong>the</strong> UK, <strong>the</strong>y must be able <strong>to</strong> establish, amongst o<strong>the</strong>r things, that <strong>the</strong>y
have met, that <strong>the</strong>y intend <strong>to</strong> live <strong>to</strong>ge<strong>the</strong>r permanently and that <strong>the</strong>ir relationship is
subsisting. Operational guidance used by UK Border Agency (UKBA) officials fur<strong>the</strong>r
establishes that:
Intention <strong>to</strong> live permanently with <strong>the</strong> o<strong>the</strong>r means an intention <strong>to</strong> live <strong>to</strong>ge<strong>the</strong>r,
evidenced by a clear commitment from both parties that <strong>the</strong>y will live <strong>to</strong>ge<strong>the</strong>r
permanently as husband and wife immediately following <strong>the</strong> outcome of <strong>the</strong>
application in question or as soon as circumstances permit.
The timing and nature of a decision regarding residence, who <strong>to</strong>ok <strong>the</strong> initiative
and <strong>the</strong> way in which <strong>the</strong> decision was reached may be important fac<strong>to</strong>rs in
assessing whe<strong>the</strong>r or not <strong>the</strong> couple intend <strong>to</strong> live <strong>to</strong>ge<strong>the</strong>r permanently. The
ECO should consider:
- If <strong>the</strong> couple have not discussed and agreed where <strong>the</strong>y will live, if only
in <strong>the</strong> short term, why is this?
- If <strong>the</strong> couple have discussed where <strong>the</strong>y will live; when, how and by
whom was <strong>the</strong> decision taken?
16

- Is <strong>the</strong> marriage conditional upon <strong>the</strong> applicant securing admission <strong>to</strong> <strong>the</strong>
UK?
- If <strong>the</strong> marriage is conditional upon this, who made <strong>the</strong> condition and
why?
- If <strong>the</strong> application is unsuccessful would <strong>the</strong> sponsor live with <strong>the</strong>
applicant in his / her present country of residence or elsewhere? 28
20. There is also guidance on <strong>the</strong> assessment of <strong>the</strong> validity of <strong>the</strong> marriage in
accordance with national laws and on <strong>the</strong> approach <strong>to</strong> documentary evidence in spousal
visa cases. 29 In <strong>the</strong> case of fiancés operational guidance provides that an assessment of
freedom <strong>to</strong> marry should be made. 30 The <strong>Home</strong> Offices Immigration Direc<strong>to</strong>rate
Instructions encourage UKBA staff <strong>to</strong> make fur<strong>the</strong>r enquiries when <strong>the</strong>re are any
grounds for suspecting that a marriage is not genuine – caseworkers are encouraged <strong>to</strong>
target cases, for example, where <strong>the</strong> paperwork suggests a marriage is not valid in <strong>the</strong>
UK, cases where <strong>the</strong>re is an allegation or o<strong>the</strong>r information suggesting that <strong>the</strong> marriage
is not genuine, is forced or <strong>the</strong> couple are not living <strong>to</strong>ge<strong>the</strong>r or cases where, having
been admitted, an individual marries someone else. 31 Guidance fur<strong>the</strong>r provides for
interviews or home visits <strong>to</strong> be carried out where, for example <strong>the</strong> applicant has married,
in a short space of time, a person with whom he had no substantial prior acquaintance,
or where evidence has come <strong>to</strong> light that a couple are no longer living <strong>to</strong>ge<strong>the</strong>r. 32 Under
section 24 of <strong>the</strong> Immigration and Asylum Act 1999, registrars are required <strong>to</strong> report any
marriage about which <strong>the</strong>y have concerns <strong>to</strong> <strong>the</strong> <strong>Home</strong> Secretary straight away – where
such reports are received caseworkers should consider visiting <strong>the</strong> couple or o<strong>the</strong>rwise
conducting an interview. 33
28 UKBA Guidance: http://www.ukba.homeoffice.gov.uk/policyandlaw/guidance/ecg/set/set1/
29 http://www.ukba.homeoffice.gov.uk/policyandlaw/guidance/ecg/set/set3/#header1
30 http://www.ukba.homeoffice.gov.uk/policyandlaw/guidance/ecg/set/set1/#header3
31 Immigration Direc<strong>to</strong>rate Instructions, Chapter 8, Section 1:
http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/IDIs/idischapter8/section
1/section1.pdf?view=Binary.
32 Immigration Direc<strong>to</strong>rate Instructions, Chapter 8, Section 1, paragraph 3.4.
33 Immigration Direc<strong>to</strong>rate Instructions, Chapter 8, Section 1, paragraph 3.4.
17

21. A number of measures have also been introduced <strong>to</strong> deal with forced marriage,
including raising <strong>the</strong> minimum age of spousal visa applicants <strong>to</strong> 21, 34 <strong>the</strong> enactment of
<strong>the</strong> Forced Marriage (Civil Protection) Act 2007 allowing for orders <strong>to</strong> be made <strong>to</strong> protect
<strong>the</strong> victim or potential victim of forced marriage and help remove <strong>the</strong>m from <strong>the</strong>
situation, 35 and <strong>the</strong> publication of Guidance for UKBA officials assessing an application
which may involve an alleged forced marriage. 36
22. On this basis, <strong>the</strong> introduction of proposed requirements such as those <strong>to</strong> ensure
‘a marriage or partnership was entered in<strong>to</strong> voluntarily’, ‘was not entered in<strong>to</strong> solely for
<strong>the</strong> purpose of obtaining an advantage under <strong>the</strong> Immigration Rules’ and <strong>to</strong> ensure that
individuals are ‘able <strong>to</strong> provide accurate personal details about each o<strong>the</strong>r’ are unlikely
<strong>to</strong> add much <strong>to</strong> current practice. 37 Liberty has no principled objection <strong>to</strong> considerations
such as <strong>the</strong>se being given <strong>the</strong> force of secondary legislation, insofar as it is made clear
that assessments should be viewed in <strong>the</strong> context of <strong>the</strong> relationship as a whole and all
accompanying circumstances, with a special emphasis on respect for cultural
differences.
23. O<strong>the</strong>r proposed indica<strong>to</strong>rs give cause for concern because <strong>the</strong>y are likely <strong>to</strong>
affect many people in genuine relationships and are unlikely <strong>to</strong> be of particular
assistance in establishing abuses. The requirement that a couple have been in a
relationship for 12 months before marriage, will pose serious difficulties for people from
many parts of <strong>the</strong> world where marriage is ei<strong>the</strong>r arranged or cus<strong>to</strong>marily takes place
early on in a relationship – it will also effect those who simply feel ready <strong>to</strong> commit <strong>to</strong>
marriage quickly. For <strong>the</strong> same reasons caution needs <strong>to</strong> be exercised around
presumptions drawn on <strong>the</strong> basis of <strong>the</strong> respective ages of an adult couple when <strong>the</strong>y
marry.
34
The age at which someone can sponsor a spouse was raised from <strong>the</strong> age of 18 <strong>to</strong> 21 on 27
November 2008 by way of Statement of Changes in Immigration Rules (HC 1113 of 2007-08),
para 85.
35
See s 1 of <strong>the</strong> 2007 Act inserting a new s 63A in<strong>to</strong> Part 4 of <strong>the</strong> Family Law Act1996, providing
for Forced Marriage Protection Orders.
36
Available at
http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/IDIs/idischapter8/section
1/annexa2.pdf%3Fview%3DBinary.
37
<strong>Home</strong> Office <strong>Consultation</strong> on Family Migration paragraph 2.12.
18

24. Liberty is fur<strong>the</strong>r opposed <strong>to</strong> plans <strong>to</strong> introduce an ‘attachment test’ along <strong>the</strong>
lines of that introduced in Denmark. If introduced in this country an attachment
requirement would force a UK national or a settled resident and <strong>the</strong>ir spouse or civil
partner <strong>to</strong> demonstrate that <strong>the</strong>y have a greater attachment <strong>to</strong> <strong>the</strong> UK than <strong>to</strong> ano<strong>the</strong>r
country. This policy appears <strong>to</strong> be targeted at individuals from ethnic minorities where
<strong>the</strong> settled partner and <strong>the</strong> visa applicant share some cultural or ethnic link associated
with a particular country. In fact <strong>the</strong> Committee on <strong>the</strong> Elimination of Racial
Discrimination (CERD) has frequently raised human rights concerns about <strong>the</strong> Danish
‘attachment’ model, noting in particular that <strong>the</strong> model “may lead <strong>to</strong> a situation where
persons belonging <strong>to</strong> ethnic or national backgrounds o<strong>the</strong>r than Danish are discriminated
against in <strong>the</strong> enjoyment of <strong>the</strong>ir right <strong>to</strong> family life, marriage and choice of a spous”’. 38
25. Under <strong>the</strong> proposed model, a British national seeking <strong>to</strong> marry a foreign spouse
may be effectively forced <strong>to</strong> prove <strong>the</strong> strength of his allegiance <strong>to</strong> <strong>the</strong> UK, which will be
weighed against <strong>the</strong> ties of his spouse and any ties he might have <strong>to</strong> ano<strong>the</strong>r country,
whe<strong>the</strong>r familial, cultural or based on a period of residence abroad. So for example, <strong>the</strong>
British teacher who takes a job in Japan and meets and marries a Japanese woman
may well fall foul of this proposal. He may find himself forced <strong>to</strong> choose between leaving
his country of nationality permanently and moving <strong>to</strong> Japan, or living separately from his
life partner. A similar example is that of <strong>the</strong> British national with close relatives who have
emigrated <strong>to</strong> New Zealand. If on a visit with family she meets and forms a lasting
relationship with a national of New Zealand, she may well fall foul of this requirement,
forced <strong>to</strong> choose between living in New Zealand permanently or living apart from her life
partner. Meanwhile EU freedom of movement law means a Greek national and his
spouse, whatever <strong>the</strong> nationality of that spouse, will be free <strong>to</strong> reside in <strong>the</strong> UK wherever
<strong>the</strong>ir ‘greatest attachment’ lies. 39 It is surely perverse <strong>to</strong> create a rule which will
effectively discriminate against British citizens, granting greater family life protection and
rights of abode <strong>to</strong> o<strong>the</strong>r European nationals. Surely British nationals have a basic
38 Concluding observations of <strong>the</strong> Committee on <strong>the</strong> Elimination of Racial Discrimination:
Denmark, 27 August 2010, CERD/C/DNK/CO/18-19.
39 Although <strong>the</strong> exercise of family rights depends on <strong>the</strong> exercise of EU rights by <strong>the</strong> principal, in
content <strong>the</strong>y are virtually <strong>the</strong> same as <strong>the</strong> principal's right <strong>to</strong> enter, reside in and remain in ano<strong>the</strong>r
EEA country (Case 131/85 Gül v Regierungspräsident Düsseldorf [1986] ECR 1573, [1987] 1
CMLR 501, ECJ). They are given irrespective of <strong>the</strong> sex or nationality of <strong>the</strong> family members.
Thus <strong>the</strong> Pakistani or American husband of a woman who is an EU national is entitled <strong>to</strong>
accompany his wife when she exercises her right, for example, <strong>to</strong> set up in business, <strong>to</strong> seek
work or <strong>to</strong> receive or provide services.
19

entitlement <strong>to</strong> be joined by <strong>the</strong>ir genuine spouse or civil partner in <strong>the</strong> UK? How can we
ask people <strong>to</strong> choose between <strong>the</strong>ir marriage and <strong>the</strong>ir country?
26. To be exempt from <strong>the</strong> Danish attachment requirement you have <strong>to</strong> have held
Danish nationality for 28 years or have lived in that country legally for <strong>the</strong> same period.
As part of <strong>the</strong> process of assessing <strong>the</strong> country <strong>to</strong> which a couple have <strong>the</strong> greatest
attachment, applicants in <strong>the</strong> Danish system must show <strong>the</strong>y have visited <strong>the</strong> country at
least twice and <strong>the</strong> sponsor must have resided in <strong>the</strong> UK for at least 15 years. These
requirements, in particular, would create massive problems for UK nationals who wish <strong>to</strong>
be united with <strong>the</strong>ir spouse, partner or civil partner. Like many o<strong>the</strong>r measures set out in
<strong>the</strong> paper, <strong>the</strong>se proposals will also create difficulties for individuals of modest means,
who may be unable <strong>to</strong> fund multiple visits <strong>to</strong> <strong>the</strong> UK.
27. Liberty takes no issue with plans <strong>to</strong> publicise more widely, both at home and
abroad, <strong>the</strong> consequences of sham marriage for <strong>the</strong> immigration status of those seeking
leave <strong>to</strong> enter or remain in <strong>the</strong> UK. This is a common sense proposal which, it is <strong>to</strong> be
hoped, will encourage would-be entrants <strong>to</strong> <strong>the</strong> UK <strong>to</strong> think twice before abusing <strong>the</strong>
immigration system. We are strongly opposed, however, <strong>to</strong> measures which will see a
blurring of <strong>the</strong> lines between those responsible for conducting and overseeing marriages
in <strong>the</strong> UK and immigration officials. Whilst <strong>the</strong>re should be scope for communication and
intelligence sharing between <strong>the</strong> two where suspicion of criminality arises, it would be
highly inappropriate <strong>to</strong> create a post, as proposed, which combines <strong>the</strong> role of registrar
and immigration official. Effectively combining a marriage ceremony with an immigration
interview does nothing <strong>to</strong> protect and promote <strong>the</strong> institution of marriage, which <strong>the</strong>
Government claims <strong>to</strong> hold in such high regard. Registrars are already required <strong>to</strong>
provide intelligence <strong>to</strong> <strong>the</strong> UKBA in cases of suspicion. It is very difficult <strong>to</strong> see how
training in <strong>the</strong> requirements of <strong>the</strong> immigration rules, including <strong>the</strong> immigration
consequences of sham marriage, would add anything <strong>to</strong> <strong>the</strong> ability of registrars <strong>to</strong> detect
sham marriages. If <strong>the</strong> Government proceeds with proposals which approach all
marriages involving a foreign (non-EU) spouse through a prism of mistrust, it risks
alienating a significant sec<strong>to</strong>r of <strong>the</strong> UK population and falling foul of discrimination and
human rights laws. We are extremely concerned by suggestions that incentives be
created dependant upon <strong>the</strong> number of ‘sham marriages’ identified by individual local
20

authorities. This is liable <strong>to</strong> create perverse incentives leading <strong>to</strong> a culture of mistrust
between local authorities and <strong>the</strong> communities <strong>the</strong>y serve.
28. Liberty has concerns about <strong>the</strong> introduction of new measures around <strong>the</strong>
provision of documentary evidence by spousal visa applicants. There are already
considerable evidential burdens on those seeking a spousal visa. Whilst in <strong>the</strong>ory a
proposal designed <strong>to</strong> require people <strong>to</strong> evidence <strong>the</strong>ir eligibility <strong>to</strong> marry is
unobjectionable, <strong>the</strong> practical reality will be that many genuine couples, perfectly entitled
<strong>to</strong> enter a marriage, will be affected. Our concerns are not limited <strong>to</strong> those claiming
persecution in <strong>the</strong>ir country of nationality, proposals will also represent an unfair and
potentially discrimina<strong>to</strong>ry impediment <strong>to</strong> individuals from countries in a state of internal
armed conflict, countries where <strong>the</strong> institutions of state are no<strong>to</strong>riously corrupt and
demand bribes for <strong>the</strong> performance of <strong>the</strong> most simple functions and for individuals
whose means and location within a country make contact with <strong>the</strong>ir embassy or ano<strong>the</strong>r
organ of state a practical impossibility.
29. In summary, Liberty urges <strong>the</strong> Government <strong>to</strong> ensure that policies designed <strong>to</strong>
prevent abuse of <strong>the</strong> immigration system or human rights violations such as forced
marriage or domestic violence are properly targeted and <strong>to</strong> avoid blanket policies which
are likely <strong>to</strong> prove discrimina<strong>to</strong>ry and ineffective.
Protecting <strong>the</strong> British taxpayer
30. The <strong>Home</strong> Office proposes raising <strong>the</strong> income threshold for individuals settled in
<strong>the</strong> UK who wish <strong>to</strong> bring a spouse, civil partner or o<strong>the</strong>r close or dependant family
relative <strong>to</strong> <strong>the</strong> UK. The claimed reason for this proposal is a conviction that new migrants
should be able <strong>to</strong> support <strong>the</strong>mselves without recourse <strong>to</strong> public funds. Liberty accepts
that <strong>the</strong> family members of economic migrants should not be routinely granted leave <strong>to</strong>
enter <strong>the</strong> UK unless <strong>the</strong>y can be maintained and accommodated without recourse <strong>to</strong>
public funds. However <strong>the</strong> law already makes provision for this. Paragraph 281 of <strong>the</strong>
Immigration Rules deals with requirements for leave <strong>to</strong> enter <strong>the</strong> United Kingdom with a
view <strong>to</strong> settlement as <strong>the</strong> spouse or civil partner of a person present and settled in <strong>the</strong>
United Kingdom or being admitted on <strong>the</strong> same occasion for settlement. Amongst o<strong>the</strong>r
requirements it stipulates that <strong>the</strong> individual seeking leave <strong>to</strong> enter must be in a position
21

<strong>to</strong> demonstrate that he or she can be adequately maintained without recourse <strong>to</strong> public
funds. The Courts in this country have held that in order <strong>to</strong> satisfy <strong>the</strong> maintenance
requirements of <strong>the</strong> Immigration Rules, family migrants must be able <strong>to</strong> demonstrate that
<strong>the</strong>y will have access <strong>to</strong> sufficient funds, without recourse <strong>to</strong> benefits, <strong>to</strong> put <strong>the</strong>m in a
similar position <strong>to</strong> a settled person claiming income support in <strong>the</strong> UK. 40 It is entirely
reasonable <strong>to</strong> demand that family members of economic migrants are not living in <strong>the</strong>
UK at a level which is below that deemed acceptable for British nationals claiming state
subsidy. It is also reasonable <strong>to</strong> expect most migrants <strong>to</strong> find those funds <strong>the</strong>mselves.
However, Liberty opposes plans <strong>to</strong> increase income thresholds over and above income
support base rates. It is misleading <strong>to</strong> suggest that this will reduce <strong>the</strong> burden on British
taxpayers, as new arrivals are already required <strong>to</strong> support <strong>the</strong>mselves <strong>to</strong> a standard
deemed acceptable in this country. Proposals <strong>to</strong> increase income thresholds will simply
disadvantage families of modest means, potentially leading <strong>to</strong> <strong>the</strong> ongoing separation of
close family members.
31. The <strong>Home</strong> Office also proposes that those sponsoring family migrants provide a
local authority certificate confirming housing will not be overcrowded, where <strong>the</strong>re is no
o<strong>the</strong>r documentary evidence. Liberty agrees that <strong>the</strong> family members of economic
migrants should not be routinely brought <strong>to</strong> <strong>the</strong> UK <strong>to</strong> live in <strong>the</strong> kind of unacceptably
crowded conditions which we would be loath <strong>to</strong> accept for British nationals. However, <strong>the</strong>
Immigration Rules already require spouses, civil and unmarried/same-sex partners <strong>to</strong>
show that <strong>the</strong>re will be adequate accommodation for <strong>the</strong>mselves and any dependants,
without recourse <strong>to</strong> public funds, in accommodation which <strong>the</strong>y own or occupy
exclusively. 41 Children must show that <strong>the</strong>y can and will be accommodated adequately
by <strong>the</strong> parent, parents or relative sponsoring <strong>the</strong> child, without recourse <strong>to</strong> public funds,
in accommodation owned or occupied exclusively by <strong>the</strong> parent, parents or relative, and
that <strong>the</strong>y can and will be maintained adequately by <strong>the</strong> parent, parents or relative,
without recourse <strong>to</strong> public funds. 42 O<strong>the</strong>r dependent relatives must show that <strong>the</strong>y can
40
KA (Adequacy of maintenance) Pakistan [2006] UKAIT 00065 (4 September 2006); MK
(Adequacy of maintenance, disabled sponsor) Somalia [2007] UKAIT 00028 (13 March 2007).
See RB (Maintenance income support schedules) Morocco [2004] UKIAT 00142, where voluntary
payments from family members reduced <strong>the</strong> level of income support.
41
Immigration Rules, paragraphs 281(iv) and (v) (spouses/civil partners), 295A(v) and (vi)
(unmarried/same-sex partners).
42
Immigration Rules, paragraphs 297(iv) and (v), 298(iv) and (v), 301(iv) and (iva), 303A(iv),
310(iv), 311(iv), 314(iv), 316A (iv), 316D (v).
22

and will be accommodated adequately <strong>to</strong>ge<strong>the</strong>r with any dependants, without recourse
<strong>to</strong> public funds, in accommodation owned or occupied exclusively by <strong>the</strong> sponsor. 43 In
reality proposals in <strong>the</strong> <strong>Home</strong> Office <strong>Consultation</strong> paper will offer little in <strong>the</strong> way of
additional assurance that individuals entering <strong>the</strong> country will be appropriately
maintained and accommodated.
Encouraging integration
32. A recent amendment <strong>to</strong> Immigration Rules means that since November 2010 any
person who is a national of a country outside <strong>the</strong> European Economic Area and
Switzerland who wants <strong>to</strong> enter or remain in <strong>the</strong> UK as <strong>the</strong> spouse, partner or fiancé of a
British citizen or a person settled in <strong>the</strong> UK, is required <strong>to</strong> demonstrate that <strong>the</strong>y have a
knowledge of English. 44 If <strong>the</strong> spouse, partner or fiancé is a national of a majority
English-speaking country, he will be exempted from this requirement. 3 Liberty
challenged this change in policy as it was being legislated. Whilst <strong>the</strong> aim of enhancing
integration may well be legitimate, pre-entry English language requirements, in effect,
mean that some British citizens and residents are separated from <strong>the</strong>ir genuine partners
and families causing un<strong>to</strong>ld hardship and potentially putting <strong>the</strong> Government in breach of
<strong>the</strong>ir obligations as a public authority, under human rights and equality legislation.
33. Fur<strong>the</strong>r changes proposed in <strong>the</strong> current <strong>Consultation</strong> would require family
members <strong>to</strong> meet yet higher hurdles in terms of English language capability before <strong>the</strong>y
are permitted <strong>to</strong> enter <strong>the</strong> UK. Under <strong>the</strong> current proposals, spouses and partners
applying for settlement in <strong>the</strong> UK would be required <strong>to</strong> understand everyday English at
level B1, which represents a significantly higher hurdle than currently exists. New
requirements <strong>to</strong> demonstrate pre-entry English language requirements at level A1 for
elderly dependant and dependants aged 16 -17 would create fur<strong>the</strong>r onerous burdens
for potentially vulnerable children and elderly people attempting <strong>to</strong> reunite with family
members in <strong>the</strong> UK.
34. Liberty believes that proposed streng<strong>the</strong>ned pre-entry language requirements
are discrimina<strong>to</strong>ry in nature for a number of reasons. First, and most obviously, <strong>the</strong> rules
43 Immigration Rules, paragraphs 317(iv) and (iva).
44 Immigration Rules, paragraph 281(ii).
23

directly discriminate against couples where one spouse is from a non-English speaking
country and wishes <strong>to</strong> join <strong>the</strong>ir British citizen or resident partner - those wishing <strong>to</strong> be
joined by an American or Australian spouse, for example, will not be faced with <strong>the</strong>
onerous language hurdle. These pre-entry language requirements also discriminate
against couples where one spouse is from outside (as opposed <strong>to</strong> inside) <strong>the</strong> European
Economic Area (EEA) and wishes <strong>to</strong> join <strong>the</strong>ir British resident partner. Spouses from
EEA countries wishing <strong>to</strong> join a UK resident or UK citizen partner will, of course, not be
required <strong>to</strong> meet any language tests whe<strong>the</strong>r or not <strong>the</strong>y have any English speaking
ability. Instead <strong>the</strong>se reforms will have <strong>the</strong> greatest and most disproportionate impact on
those who wish <strong>to</strong> be joined by a spouse from a predominantly non-English speaking
country, particularly affecting those from South East Asia. However, perhaps most
perversely, <strong>the</strong>se proposed reforms will discriminate against British citizens who wish <strong>to</strong>
be joined by an overseas spouse and in favour of EEA nationals who have settled here
and wish <strong>to</strong> do <strong>the</strong> same. In essence, this leads <strong>to</strong> <strong>the</strong> perverse outcome that EEA
nationals who are resident in <strong>the</strong> UK will have <strong>the</strong>ir right <strong>to</strong> a private and family life better
protected than British citizens.
35. Even before <strong>the</strong> changes introduced in November last year, spousal applicants 45
were required <strong>to</strong> prove sufficient knowledge of English language under paragraph 281 of
<strong>the</strong> Immigration Rules when <strong>the</strong>y applied for leave <strong>to</strong> remain <strong>to</strong> settle with <strong>the</strong>ir UK
spouse. 46 Liberty accepts that knowledge of English will assist a migrant’s integration
in<strong>to</strong> <strong>the</strong> UK. However we do not consider that a blanket pre-entry requirement which
could potentially prevent family reunion is a proportionate or even sensible way of
achieving this aim.
36. As with <strong>the</strong> initial introduction of pre-entry English language requirements last
year, streng<strong>the</strong>ned requirements will hit women <strong>the</strong> hardest. Women make up more than
half of spousal applicants and in many countries have less economic independence and
a lower level of education than <strong>the</strong>ir male counterparts. 47 Liberty’s fear that streng<strong>the</strong>ned
45 Spousal applicants include individuals who wish <strong>to</strong> join a British citizen or a person settled here
with whom <strong>the</strong>y are having a relationship as that person’s husband, wife, civil partner, fiancé(e),
proposed civil partner, unmarried partner or same sex partner.
46 Paragraph 281(i)(b)(ii) requires that applicants for leave <strong>to</strong> enter <strong>the</strong> UK with a view <strong>to</strong>
settlement as <strong>the</strong> spouse of a person present and settled in <strong>the</strong> UK must have “sufficient
knowledge of <strong>the</strong> English language and sufficient knowledge about life in <strong>the</strong> United Kingdom”.
47 See <strong>the</strong> statistics provided in <strong>the</strong> Equality Impact Assessment (1 Oc<strong>to</strong>ber 2010), ibid.
24

pre-entry English language requirements will operate more as a bar <strong>to</strong> entry <strong>to</strong> <strong>the</strong> UK
than as a means of encouraging integration is not only speculative. When first mooted
by <strong>the</strong> last Government pre-entry language requirements formed part of a wider package
of proposals designed <strong>to</strong> reduce levels of immigration alongside measures such as <strong>the</strong>
numerical limit on work visas and providing for more effective regulation of students who
come <strong>to</strong> study in <strong>the</strong> UK. 48 Indeed in an interview outlining <strong>the</strong> Government’s immigration
policy <strong>the</strong> Minister for Immigration stated that <strong>the</strong> pre-entry English language
requirements would ‘bear down’ on <strong>the</strong> numbers of spousal applicants. 49 In <strong>the</strong> face of
this evidence it is apparent that fur<strong>the</strong>r changes <strong>to</strong> pre-entry English language
requirements have little <strong>to</strong> do with encouraging integration and everything <strong>to</strong> do with
reducing net immigration.
Conclusion
37. The debate about human rights protection is urgently in need of an injection of
honesty and integrity. As newly constituted democracies take <strong>the</strong>ir his<strong>to</strong>ric first steps,
both our own Government and <strong>the</strong> fledgling democracies of North Africa have
recognised this as an important moment for human rights. What better way <strong>to</strong> encourage
newly liberated Egypt, Tunisia or Libya <strong>to</strong> lay solid foundations rooted in respect for
human rights and <strong>the</strong> rule of law, than by showing our commitment <strong>to</strong> <strong>the</strong> protection of
<strong>the</strong>se values here in <strong>the</strong> UK? What better condemnation of recent atrocities in Syria or
Libya than an affirmation of <strong>the</strong> central role of human rights at home? Instead of
canvassing opinion based on fact, <strong>the</strong> <strong>Home</strong> Office’s review of Article 8 asks misleading
questions based on false premises. Such an approach does no justice <strong>to</strong> <strong>the</strong> importance
of <strong>the</strong> fundamental rights which Article 8 protects.
38. Similarly inconsistent is <strong>the</strong> Government’s stated commitment <strong>to</strong> marriage and
<strong>the</strong> family, when viewed against <strong>the</strong> backdrop of its ruthless approach <strong>to</strong> family
48
In a <strong>Home</strong> Office Draft Structural Reform Plan produced in July 2010 <strong>the</strong> English language preentry
requirement proposal was placed under <strong>the</strong> broad and telling heading “Secure our borders
and control immigration: Limit non-European Economic Area migration”.
http://www.homeoffice.gov.uk/publications/about-us/corporate-publications/structural-reformplan/pdf-version?view=Binary
49
The Today Programme on BBC Radio 4; Interview with <strong>the</strong> Rt Hon Damian Green MP on 6
September 2010 at 08:18. Available at
http://news.bbc.co.uk/<strong>to</strong>day/hi/<strong>to</strong>day/newsid_8971000/8971475.stm.
25

eunification. A whole raft of protections already exist <strong>to</strong> prevent abuses of <strong>the</strong>
immigration system, which <strong>the</strong> Government largely fails <strong>to</strong> acknowledge in this
<strong>Consultation</strong> Paper. On closer analysis <strong>the</strong> proposals set out in Sections 1-7 of <strong>the</strong>
paper have more <strong>to</strong> do with cutting net immigration, regardless of <strong>the</strong> consequences for
genuine families, than encouraging integration, discouraging abuses or reducing
burdens on <strong>the</strong> British taxpayer.
26
Rachel Robinson