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The Barriers to Family Migration: In Conversation with Helena Wray

Helena Wray is a professor of migration law at the University of Exeter. Her extensive experience in this area spans several publications, including two books (Article 8 ECHR, Family Reunification and the UK’s Supreme Court: Family Matters? in 2023 and Regulation of Marriage Migration into the UK: A Stranger in the Home in 2011), working as specialist advisor to the House of Lords Committee on Justice and Home Affairs during its inquiry into family migration, and providing expert evidence for landmark cases in the Supreme Court.

This interview was conducted in November 2023, prior to the UK government’s announcement that it would be increasing the minimum income requirement for spouses and partners from £18,600 pa to £29,000 and then to £38,700.

CJLPA: Welcome, Helena Wray, from The Cambridge Journal of Law, Politics and Art. We are pleased to have you here today to discuss the legal and political issues surrounding migration in the UK. Firstly, a little bit of a background: what problems arise in the regulation of immigration?


Helena Wray: I think the biggest single problem is that immigration is such a highly politicized area that politicians feel compelled to make sometimes unsustainable promises. And it then turns out that these are things that can’t be done, or can only be done at huge costs, or only can be done with massive trade-offs. So, you tend to get a legal regime that’s often quite confusing, very changeable, sometimes quite inhumane, with limited accountability. And there are lots of people who are disadvantaged by thisemployers trying to get workers in, for example—but the people who suffer most from it are the migrants themselves and their families. So, refugees, people seeking asylum, people wanting to come to the UK to join their loved ones, all of those people can find it very, very difficult to challenge those laws. Because, in essence, the government claims that it has, or would argue that it has, a mandate to do pretty much what it likes. And the law gives it very wide powers. Of course, migrants, generally speaking, don’t have votes. And so, if you’ve got two constituencies to please, you’re going to please the one that you think will vote for you.


CJLPA: Of course. And following from that, do you believe that the UK is actually facing a migration crisis as portrayed by the Home Office? Or do you think that’s a politicized view of it?


HW: The term crisis is always a construction. Events happen, and people respond to them. And one of the ways that you can respond to them is by saying it is a crisis and it requires emergency measures. Do I think quite a lot of people want to come to the UK? The answer is yes. Clearly, there are people, many people want to come to the UK. Why do they want to come to the UK? Often for very good reasons: work, family, study, to join loved ones, to flee persecution, warfare, civil war, environmental degradation, all sorts of things. Now, that can be interpreted as a normal event, something that is inevitably going to be going to happen in the world that we live in. Or you can construct it as a crisis that not just to be managed, but to be prevented, justifying all sorts of other measures. So, I think, there are lots of people who want to come. Whether or not it’s a crisis is very much in the eye of the beholder. But what I think is clear is that attempts to prevent this tend to just make things worse and force the movement onto other places.


So, we have a small boats crisis—I would say that is a crisis in my view, because people are risking their lives in horrible conditions to try to cross to the UK, at great risk to themselves. So, it’s clearly a really awful state of affairs. But you have to look back and say well, those people were people who in the past would have perhaps tried to come in lorries, before the route via lorries was blocked so comprehensively, or in the Eurostar, before all the fences were put up at Calais, and then even better for them, they would have come in, perhaps on a flight because they didn’t need a visa. If you go back historically, back to the turn of the 20th century, there were no real immigration controls at all, only 120 years ago. So, I think the reality is that people will want to move including into and out of the UK—whether or not that is a crisis depends upon how you view it.


CJLPA: What are the main barriers faced by families wishing to migrate to or wishing to reunite through migration to the UK?


HW: Well, the UK has one of the strictest family migration regimes in the world. In fact, there’s an index called the MIPEX (Migrant Integration Policy Index) which it looks at a large number of countries, including countries outside Europe, and rates the accessibility of their family migration policies, and the UK is second from bottom. The only other country beneath it is Denmark, which has a notoriously strict family migration regime. So, the regime that people face is much stricter than it is in other countries, and it’s pretty strict in other countries. There are quite a lot of countries which have quite difficult regimes, but the UK is particularly difficult.


It’s difficult in a number of ways. It’s very difficult to come in as a family member, unless you are a spouse, or a partner, or a minor childa child under 18and both your parents are in the UK. That’s a really important qualification, you can’t just come in to join one parent if you’ve got another parent somewhere else. Outside of that group: elderly relatives, dependent siblings, adult childrenit’s extremely difficult to enter. The rules are very strict, almost impossibly strict. So, the criteria themselves, the groups or the categories of family member who can enter are very narrow. Then even for those people who fall within that one of those categories, the rules are very demanding, particularly for spouses and partners. They require you to earn a minimum income, which many people do not meet, and this has to be met in very particular way. So, you have to earn it for at least six months, and you have to have the evidence to show that in numerous ways.


And that’s just the beginning; there are lots and lots of other conditions you have to meet. You have to show your accommodation, and you have to get lots of documents ready. So, it’s a very complex system in that respect. And in addition, it is extremely expensive. Visa fees cost thousands and thousands of pounds. You’re not talking small amounts at any stage, because just the initial application plus what’s called the ‘immigration health surcharge’, and then after all the additional costs, translation costs, perhaps getting a medical certificate, you’re talking about several thousand pounds just to make the application. And then that has to be renewed after two and a half years, and then renewed again, after a further two and a half years, some]times you have to keep renewing that for up to 10 years or even longer. So, all the time you’re having to find thousands of pounds to support your visa fees. The whole route is complex, it’s expensive, it’s difficult to access. It really is not a family friendly route.


CJLPA: It doesn’t sound like it. And, talking a little bit more about how only spouses or partners or minor children can relocate to reunite with family, how has a narrow or perhaps outdated view of what family actually means caused problems for families or family members migrating to the UK?


HW: The question is about those who tend to be called ‘adult dependent relatives’. That’s the category in the immigration laws, and that could be your elderly parents or grandparents, but it could also be, for example, a sibling who is in distress and who needs support, or even your adult child. If you are in the UK, and you have responsibility forand you’re very anxious aboutone of those relatives, that’s going to make your life here very difficult, very complicated. You may have to spend thousands of pounds flying out to see them, you may have to make decisions about what sort of work you can do, you will be constantly preoccupied with trying to ensure that they’re looked after properly, you may feel extremely guilty that you can’t care for your family member. You’re torn between your family life here and then maybe children that you need to look after, and your elderly parents in another country, who also need care. It causes immense amounts of distress and anxiety. Some people who have options actually decide to go and live somewhere else that has got a more friendly regime, particularly NHS workers who go to other countries because that country will allow them to bring in an elderly parent, for example.


From the point of view of the migrant who wants to come inthe family member who wants to come inthe level of dependency or some vulnerability needed before they’re even considered eligible for a visa is extremely high. So, you’re talking about sort of people who are almost sometimes too ill to travel before they can actually qualify. It’s not absolutely at that level, it is sometimes possible to get people in, but it is extremely difficult. And I’ve seen two lots of problems with it.


Number one: it really is discriminatory, because the people who’ve got family members abroad are generally people who are themselves of migrant descent. You wouldn’t have an elderly parent or, in most cases, a sibling or an adult child who lives abroad who can’t join you unless you yourself are of migrant origin. So it discriminates, it creates a class of people who can’t have the same sort of family life that the rest of us can look forward to having.


The other problem is that it takes a really functional and instrumental attitude towards what family is. So, for example, one of the arguments will be: ‘well, you’re paying for care for this elderly person, or you can pay for care for this elderly person, in a home somewhere in another country. So why do you need to bring them in?’. Well, that’s not what family life is about. Family life is about caring for people who you want to have with you, about that type of love and affection and reciprocity, and these aren’t recognized at all. And I think another aspect of thiswhich perhaps is really not discussed enough, and of which I think some people who work in migration are also a little bit guilty, because we want to make the most compelling moral case that we canis that it’s not just about extreme vulnerability and extreme dependency, it’s about the quality of family life. So, you could bring in a parent who is maybe in their 70s, or late 60s or whatever, and they won’t be economically active, but they will be a very vital part of their grandchild’s life, they will really enrich family life, they can offer advice, they can offer support, there are all sorts of ways in which family life is enriched by having other relatives live with you. And those sorts of considerations just do not enter into the way that the rules are set up.


CJLPA: That’s really, really interesting. And how does the accessibility or on affordability of good quality legal advice affect migration?


HW: It’s a major issue in this country. We have some absolutely brilliant immigration lawyers. And I know many, many immigration lawyers who work extremely hard for their clients and are extremely well informed. There are also some advisorsimmigration is a regulated area, you cannot offer immigration legal advice unless you’re either a solicitor or a barrister, or you are approved by something called the Office of the Immigration Services Commissioner, which makes you take exams and checks your knowledgebut even so the quality of advice is quite variable sometimes. And people cannot always access the best advice. The rules are incredibly complex and, frankly, impenetrable. I know there was a simplification exercise going on that we might hope to get round to the family migration rules at some point. But at the moment, if I said to you, please go away and read appendix FMwhich is the bit of the immigration rules that deals with most family applicationsyou would just be lost within a couple of minutes. They are extremely difficult to read, to follow, you have to read them in conjunction with other parts of the immigration rules, you have to look at the guidance, you have to cross check between different sections, you really need to know your stuff. You might, if you’re good and pretty capable, be able to do your own straightforward managed visa applicationbut if you want to bring in an elderly relative, or there is some complexity about your case, you really need legal advice.


And legal aid is not available in immigration cases. You can sometimes get what’s called exceptional case funding in human rights cases, but that is really complicated to get because you have to make a separate application first for which the lawyer is not paid. And then once that is granted, then you have to find a lawyer who will take your case. And the problem with that is that the number of lawyers doing legal aid has really plummeted, because it’s just not well paid enough, people can’t make a living doing it. And we’re not talking about making a really fantastic living and living in luxury, but making a basic salary that somebody who’s undergone years of higher education and training should be able to earn, nothing spectacular. So, there are real problems there in what’s called a desert in terms of legal advice, especially in certain areas of the country. Now, with technology and so on it is easier to instruct a lawyer in a different part of the country and have Zoom meetings, for example. So, it’s not that necessary to always have to have someone local. But it’s just generally that there isn’t enough good quality advice, unless you’ve got the money to really pay for it.


CJLPA: And that money is obviously on top of the visa application costs and the income requirements needed anyway. You did touch a little bit on income requirements and how they create problems. But can you talk a little bit more about that? And also about whether the income requirements actually fulfil the intended purpose set out by the home office?


HW: So, the minimum income requirement, or the ‘MIR’, as it’s called, is probably the most controversial bit of the immigration rules for spouses and partners. Just to give you a bit of history, it was introduced in 2012. Before that, there was a much more general test, which was called adequate maintenance. Basically, what that meant was that you had to show that if your partner came into this country, that together you could keep yourselves at a level above income support level, benefits level. So, above a minimum standard, which is reasonable, because you don’t want families falling into destitution and poverty as a result of this. It was a basic check ensuring that families are self-sufficient.


In 2012, the government introduced the MIR, at a level of £18,600 a year. Now, at that time, that was actually very high; around half the people of working age could not meet it. So, that excluded large numbers of people. And it excluded large numbers of people in quite a discriminatory way: for example, typically women with caring responsibilities, people who live in poorer regions, where wages are lower, people who have other caring responsibilities, and also people who are studying, people who are undergoing training, people who are in low paid professions doing really vital but low paid work, like care work. They could all very easily earn below £18,600. So, it’s been extremely problematic for many years. And it’s been very controversial and there’s been a lot of criticism of it. And those criticisms do continue because they remain valid.


I think the way in which the MIR now operates is slightly different, because obviously wages have gone up in the interim. So, if you have a full-time job—40 hours, 36 hours a week, something that equates with a full-time job, at the minimum wage—you will meet the MIR. But the problem is that many people work on variable hours contracts, zero hours contracts, casual employment, people are self-employed, and they don’t necessarily get the minimum wage from their self-employment. And in addition, you can’t just meet the MIR at the moment that you make the application, you have to have met it for a minimum of six months before. So, it’s comparatively low, it’s just complicated to meet.


The other thing is that it puts all the onus on the sponsor. Say your partner is outside the UK. You, the sponsor, at the moment of admission, the moment that you make the application for them to come in, must earn this amount. But what if your partner is a merchant banker, and you’re a student? You’re not necessarily going to have the money, but there’s no doubt that they’re going to make the money. There are some ways around this. You can sometimes meet it by very large amounts of capitalbut we’re talking about pretty substantial amounts, over £60,000, if you haven’t got an income at alland there are some exemptions for people who have disability related benefits and carers allowance and things like that. So there is some flexibility, but not much. It has proved extremely problematic for lots of people. And there have been many reports of people being separated, including children who’ve been separated from a parent. It was estimated in 2015 that are about 15,000 children who were affected in this way.


Does it meet its purposes? There’s no evidence to suggest that it does. The idea behind it was to avoid families claiming welfare benefits. Now, to begin with, when you come into this country, and you’re in what’s called your probationary period, which is at least five years, you are ineligible for public funds anyway. So, it’s not as if you’re going to go off and start claiming housing benefit. But also, it’s just not a realistic assessment of the position of the family after they’ve come in. Because the other party will be earning money, almost certainly, it’s not that difficult to find some sort of work. If you’ve got a sponsor who’s earning, say, £15,000, for a low-paid job, or a part-time job, they don’t meet the MIR. But what are the chances that their partner, when they want to come in, will be able to earn £3,600 a year in order to make them up to £18,600? It’s just not a realistic assessment of the family’s position.


It pushes people onto benefits. There have been quite a lot of reports of sponsors who have children with their partner abroad. And I think one of the things that the government didn’t take into account is that if people want a family, they will have a family. They’re not going to wait for the government to approve them and let them in, so you get the situation where people have had babies and childrenthey’ve often had to give birth on their own, because the partner can’t come inand then they are a single parent. And of course, it’s much more difficult for single parents to work. So, then they end up actually claiming benefits. And the government’s own assessmentand this is what’s really interestingthe government did an impact assessment of the fiscal benefits, and it made this claim that there were going to be lots of fiscal benefits, which would save the country loads of money. But when you looked into it, it wasn’t going to save any money at all. And they did it by forms of double counting of various thingsit was quite manipulative. In fact, claims for welfare would increase after the MIR came into force, because of the numbers of parents who were left on their own. So, there is no evidence to show that it has it has reduced welfare reliance. And although the evidence is a little bit speculative and anecdotal, -I can’t say that it’s been done, there is no systematic data on this - it seems it’s likely to increase it.


CJLPA: That’s really interesting, that it actually may have done the exact opposite of what the Home Office wanted to do. How do the costs with the of the visa application itself create burdens? Do you think it’s ethical or right for the Home Office to actually profit from visa applications?


HW: Well, the visa fees have just been put up by further 20%, in October. So, they’re now just astronomical, really, really, really high. A further point on the MIR: the £18,600 is for a spouse, but if you want to bring in a child who’s not a British citizen, it is higher than that. So, if you married somebody from abroad, and they had two children whom they wanted to bring them with themyour stepchildrenand they were even able to come in under the immigration rules, perhaps because the other parent had died, even so you’d have to earn more than £18,600 to sponsor them. So, it is all extremely difficult. And the reason I say that is, I’m starting to think about families living in the UK, where they have to make renewal fees. And those fees for say, a spouse and two children are not just paid at the beginning, but then paid again after two and a half years, and people just can’t afford it, or they have to make really difficult choices. Do I save up for the visa fee? Or do I turn on the heating, or do I feed my child? All sorts of very, very difficult choices.


So what you get, actuallyand this is increasingly being reportedis that families, people who are here regularly with a visa, with leave to remain become irregular, lose their leave to remain, become counted as amongst the illegal migrantsnot a term I want to use, but how they are often described in mediabecause they can’t afford the visa fee. Or you get people having to make the invidious choice: I’ve got two children, do I pay the fee for one or for the other, which one gets the visa, which one gets a path for citizenship, and which one becomes undocumented? So, the visa fees are extremely problematic.


Do I think it’s ethical? No. The idea behind these very high visa fees is that is that they pay for the overall costs of the immigration system. But these people are not responsible for the overall cost of the immigration system. If you’re living in or you’re applying to come to the UK perfectly legally, you’re doing everything right, or you’re trying to renew your visaand again, you want to make sure that you don’t become irregularwhy should you have to pay for the removal from the UK of somebody who hasn’t, who has overstayed their visa? It’s a service, if this country has decided that we need these very strict immigration controls, it shouldn’t be the users of the service, who have no choice but to use the service, if they want to come in, who pay.


CJLPA: How do inconsistencies emerge within the UK migration system, and how does that discriminate against or disadvantage some families?


HW: So, the UK does have obligationsunder international lawto recognise people who are refugees under the Refugee Convention, but it is trying to distance itself from those obligations. One of the ways it’s doing this is by creating these bespoke routes for certain favoured groups. I do think, of course, that we should be helping Ukrainians and their families to reach safety. And, we have a responsibilitythey are our neighboursbut we also have responsibility to many other people. What about Afghans? What about people from Syria, or Iraq? And now, of course, we’ve got the terrible situation in Gaza, as well. All of those are people who want to reach safety. And in many cases, particularly in Afghanistan, where the UK has been very involved in their threats, as a result of its foreign policy, you can argue that we have a strong moral responsibility towards those people.


What you tend to find is that the government will use what they call the ‘safe and legal routes’ in order to justify trying to deter people from coming in other ways to seek safety. But when you look at what those safe and legal routes are, they really don’t exist beyond the Ukraine scheme, and also beyond another scheme that was for Hong Kong nationals again as a historic link. Again, it’s not that I’m against that scheme, but I think we should be looking at what more widely are our responsibilities. There is a problem that some people seem to be more deserving than others, and it feels very discriminatory.


CJLPA: On a similar line, do you think that the requirements for competency in the English language for migrants joining their spouses or partners create additional burdens, and perhaps discriminate as well?


HW: First of all, obviously, if you’re going to live in the UK being able to speak English is going to be very important. So, it’s not that people shouldn’t be learning English if they’re going to live here. The problem with the pre-entry testit’s quite clever the way it’s done because it’s very low level, it’s A1 speaking and listeningbut it’s the ability to learn English before you come here. It really, really differs depending upon where you are, who you are, your level of education, and so on. So, it might not be that difficult, if you’re living in a large city such as Beijing, or São Paulo, to go and find a language school and to take a test and get some language skills. But if you’re living in a rural village 500 miles from anywhere with perhaps very intermittent Internet, and lots of other problemssuch as if you’re not literateeven speaking, getting access to the tuition is going to be difficult, and travelling to take the test is going to be difficult, and you are expected to take the test.


It’s a test that many people fulfil very easily, but I don’t think it’s recognised that it is more difficult for some people. The government say, ‘you can’t come in, because you haven’t met the English test’—but then, how are you going to learn English? If you can’t learn it, you can’t learn it. Whereas if migrants were allowed in, they could enrol inI know, there is a shortage of local classesbut, there’s a possibility of learning English at a local college in the UK. And you perhaps you can have some sort of expectation that people will go along with that and make an effort.


The other thing that I find quite disturbing is that there are exemptions, but those exemptions are quite elitist in character. So, one exemption is that if you have a degree taught in Englishfair enough, obviously, if you’ve got a degree taught in English, you presumably meet the test. But if you’ve got another qualification in English below degree level, you’re also going to be above A1 speaking and listening. For example, if you’ve got an equivalent of a baccalaureate or an A Level in English, that’s going to show that you have some ability. The other thing that I think is more disturbing is that there are exemptions for what they call majority English-speaking countries, and those are countries for whom English is the national language. So, as you’d expect, US, Australia, New Zealand, and so on, but no African countries. Now, many African countries have English as the main language of communication, as one official language, because there are many, often local languages. And it’s unlikely that there will be many people who don’t speak any English at all. There is this risk, because not everybody who lives in Ghana or Nigeria will have learnt spoken English at primary school, been to primary school and learned English. But let’s take the example of Canada, which is exempt. If you go to French speaking Canadato Quebeceverything is in French. You can naturalise in Canada without speaking English, because you can choose French as your language, you can go to University in Montreal or Quebec City and never have a course in English. I have myself taught master’s students from Canada, and I’ve had to send them off to the language centre because their English is just not good enough. So, it is quite suspicious to me that Canada is okay but Ghana or Nigeria isn’t.


CJLPA: Definitely. That’s really interesting, I didn’t know that. Talking a bit more about children, do you think that children’s interests are prioritised in immigration cases as much as they should be? And what issues and dangers particularly surround children in the context of migration?


HW: There are a lot of problems with children. There’s an obligation in international law under the Convention on the Rights of the Child to treat children’s interests as a primary consideration in any decision that concerns them, and that duty has been more or less implemented into British law through Section 55 of the Border Citizenship and Immigration Act, after the UK withdrew its reservation on immigration and nationality matters. So, the UK Government does have an obligation to treat children’s interests as a primary consideration in immigration decisions that concern them. And incidentally, that seems to be part of the European Court of Human Rights, Article 8, family life jurisprudence as well.


Now, saying that a child’s interests are a primary consideration doesn’t make them the paramount consideration. There is a distinction. So other factors can outweigh them. It’s still a relative standard. There have been a number of Supreme Court cases on this. Essentially, what the court has said on that really quite strongly— is yes, they are a primary consideration, but they can be outweighed by an accumulation of other factors. But no single factor is more important than children’s best interests. And the Supreme Court has also said that nationality, the interests of a child in growing up in their country of nationality, is part of their best interests. So, when you have a British child, it is in their best interest to grow up in the UK and to be part of British society.


So, there isin theoryquite a strong obligation. And I would say that has had some impact. There are some more provisions, both in statute and in the immigration rules, that say, for example, that where a child is a British citizen or has lived in the UK for seven years, a parent should not normally be removed if it’s not reasonable for the child to follow them. So that does help some families and it is now easier for some families to stay together. But although that is a right that exists in law, I think it can be quite difficult to make that work for youthere are these provisions, but then the guidance may take quite a narrow view. And you would need a lawyer, or somebody really experienced in those sorts of arguments to say, look, the way you’re interpreting this, these obligations are just not strong enough, it doesn’t comply with the government’s legal obligations.

It still can be considered reasonable to expect a British child to leave their home and go to live with in another country. What does that mean? What is reasonable? How much disruption are they expected to have? I would say that there is more protection now for British citizen children, in terms of not having a parent refused admission, or being forced to go abroad and splitting up the family in that way, provided they have the resources and the resilience and so on to argue that and put the case in the proper way. But where you have children who are not British citizens, and who are living in the UK, it’s a much less favourable picture. And we do have lots of children living in very uncertain immigration conditions. There are, I think, possibly around 100,000 children who have been born into the UK but don’t have British citizenship, because you no longer get British citizenship just by virtue of being born in the UK, you have to have a parent who’s got settled immigration status or citizenship.


That can be very uncertain itself. For example, we’ve had the Windrush scandal and uncertainties around what people’s status is. So, you can get these families where they don’t really know what their status is. And it can be extremely difficult to prove it. They might have a right to register the child as a British citizen, but that’s a very expensive application, it costs more than £1000. And again, you have to be aware that that opportunity is there. And then, you’re going to get families where perhaps the parents came with a child at a very young age, and they’re living perhaps without leave here. That’s not the child’s fault. That’s not a decision the child made. But it means that child is growing up in very precarious, very marginalised circumstances, with no recourse to public funds. It means that the family can’t get supported in the way that other families might get supported. And they do live a really precarious and difficult life. So, I’d say that there is a lot more we could do to protect children’s interests in, in immigration, and also in nationality law as well.


CJLPA: How do the UK’s migration policies interact with human rights, particularly of course the right to family and private life, but even the right to life itself?


HW: Obviously, as you probably know, under the Human Rights Act, convention rights have been brought into British law, and they are binding on decision makers, and on courts and tribunals. So, if you take the right to life, first of all, you would think that it’s really strong, right? It’s the most basic right of all, to stay alive. The problem is that it sort of doesn’t really operate. The threshold for showing your right to life is going to be threatened by for example, being sent to another country is really very high. And in fact, in those circumstances, you’re much more likely to rely on Article 3, which is right to protection from the prohibition on degrading and inhuman treatment and torture.


Article 3 has been very, very important in immigration because where people, for whatever reason, can’t fall within the Refugee Conventionand that has its own criteria that that do exclude quite a few people—but under Article 3, where there’s a reasonable likelihood that you will suffer inhuman or degrading treatment or torture, if you’re sent back to your country, then you cannot be sent back home. And you have to get some form of humanitarian protection or other type of leave. And that has operated to protect quite a lot of people, for example, fleeing civil wars, and so on. So that has been very important.


Human rights have also been important occasionally in looking after the interests of people who are already here. So, there was an important case around Article 3, when the government tried to remove any form of subsistence from asylum seekers, and they were all becoming destitute, and sort of just living on the street. And that was found to be a breach of Article 3, because they’re asylum seekers, they can’t then go anywhere to go until their claim is decided.


When it comes to Article 8, that’s the right to protection for family life. And that is a key one for families. The problem is that Article 8 is a qualified right. So, on the one hand, you have the right to protection of your family life. On the other hand, if it is proportionate, if there is a public interest or it is for the public good that you should be removed or refused admission, then that can outweigh your family life claim. So, the extent to which Article 8 can inhibit governments or put restraints on what governments can do has been really widely litigated, both in the European Court of Human Rights and also in the domestic courts in the Supreme Court. And I think where we are now is that the public interest in immigration control is very, very strong. You can argue about whether that is a correct interpretation of Article 8. And there are some quite complicated legal arguments around that, which I won’t get into here. But the fact is, that is what the courts are saying, so that’s what the position is. And so, if you don’t have an immigration status, so either you’re here and you don’t have a status, or you want to come into the country, it’s only going to be really in exceptional cases that Article 8 is going to help you. It does have an impact, but its impact is quite at the margins, it is not going to really change or revolutionise immigration policies, it just enables a few difficult cases to succeed.


As part of all the battles that went on in the courts over a period of about 10-15 years, the government legislated. So, obviously, if primary legislation overrides the Human Rights Actin terms of, implied repealto that extent, even if they’re not complying with their obligations, it would probably prevail, at least here in the domestic courts. But the fact is, probably what they’ve said in the statute, as well in the immigration rules, is pretty close to what the Strasbourg Court would say, because the Strasbourg Court has been really quite cautious in developing Article 8. And so, there’s often not a lot you can do.


CJLPA: That’s interesting and quite frustrating. You would think that human rights would play more of a role and help more people.


HW: I think people were hoping that it would. I think, obviously, the government’s got its own point of view, and the government, particularly at the moment, is very keen to minimise immigration and so it’s going to do the bare minimum.


Article 8 doesn’t say anything about immigration. So, you’re having to interpret Article 8 in a new context. And we’ve got the living instrument doctrine. We’ve also got the fact that you’re asking states to do something— when Article 8 concerns family reunification, that is regarded as a positive obligation on states, and the courts are going to be quite cautious about that. Essentially the Strasbourg Court, does rely very heavily on state consensus, and there isn’t a consensus on this issue. It’s not that the states are not all moving together towards trying to be nicer towards family migrants on the whole so they feel they have to leave a margin of appreciation to domestic authorities, and that they’re acting in a supervisory capacity. So, there are some cases that succeed at Strasbourg. And those cases have given an indication of the sorts of cases that might succeed. So, you do have some degree of, of clarity now that there are certain types of cases, almost always involving children. It is very difficult to bring an Article 8 case without there being a child, and this best interest of the child is now quite a powerful tool for that reason. But they are really only a very few cases.


CJLPA: When you were talking about the best interests on society, how does migration policy affect wider society in the UK in all aspects, so public services, or the economy, for example?


HW: It’s difficult to know the data on this, because obviously it’s a counterfactual. We don’t know what the world would look like if policies were different. But we’ve seen post-Brexit, the impact of Brexit, where it’s quite clear that Brexit has created a lot of shortages in the economy, and that this has had a damaging effect. So, I think, generally speaking, the upsides of migration have not been fully appreciated, and people will begin to appreciate that a bit more now. I think there’s been a lot of anti-migration talk, and not enough appreciation for how much our public services and other industriescatering, care, across the board, really, because migrants range from being very skilled, to doing more practical work, food processing, and so onhow much all of these sectors have been affected by labour shortages. So, not allowing migrants in does have a negative economic impact.


Now, that’s not to say that that’s the only issue. Obviously, economics isn’t all of it. I think that there is a tendency to blame lots of things on migrants, such as ‘I can’t get an appointment at my GP’ or ‘schools are overcrowded’ or whatever, where that is really a problem with investment in public services, and how we run our public services. Housing, for examplewhy are we not building more houses? It isn’t that the immigrants are taking them all, it’s that we have a real problem with building houses in this country. So, I think that the upsides of migration have been really underestimated.


Obviously, in my field in family migration, it’s really, really clear the damage that’s done to families. And I think one of the things that’s not been that much appreciated is how widespread a phenomenon this is. 50 or 60 years ago, it was primarily the ethnic minorities who had relatively recently arrived in the UK, who were wanting tofor the most partbring in spouses and children and so on. And they were very badly treated, and the policies then were very harsh and very discriminatory. But they were a bit of a side issue politically, because the vast majority of the population weren’t implicated in them, they weren’t really affected. But we now live in a very different world and those are populations that have been here now for 50-60 years and are very, very much part of British society and that is not going to change, and yet they still have connections with their ancestral home. And in addition, we’re all very much more globalwe move a lot more, we go abroad a lot more, we go on holiday, and you can meet somebody on holiday, you can meet somebody if you’re studying for a term at another university. If somebody comes here on a visit or a tour or, whatever, they might meet someone and want to settle and get together with them.


So, I think the restrictions in family immigration affect quite a wide range of the population now, and it’s much more of a mainstream concern. And it really does damage families and divided families, it causes a lot of heartache, it causes a lot of pain, it causes a lot of practical difficulties. It’s really important. Nothing comes without costs. There’s not some magical world in which only good things are going to happen and none of the bad things, but I think that we have had a very unbalanced view of what migration can do, and its benefits. And we’ve focused so much on the negatives, that we’ve lost sight of the fact that a society that isn’t open, isn’t culturally open, isn’t outward looking, isn’t welcomingthat that’s not a very nice society to live in.


CJLPA: One final question that I thought would be interesting: what barriers to entry may those seeking asylum in the UK face? And what burdens do they have when applying for asylum, for example in proving that they face certain dangers?


HW: So obviously, the first challenge for asylum seekers is to get here. And that, as we all knowwith a small boat, everything elsethat’s extremely difficult. And the reason, there’s lots of reasons for it, but one reason is that the obligations, both in human rights law and in asylum law, really only kick in when the person is within the jurisdiction, which for nearly all purposes means within the territory. There are some marginal cases outside of that, but generally it is within the jurisdiction. Whereas in asylum law, to send someone back from the borders of your own country, into a place where they may face persecutionso if they’re not at the borders of your own country, if they haven’t managed to turn up at the airport or whateverthen you don’t have any obligation towards them.


There are all these obstacles. And it’s been going on for years with carriers’ liability, fining airlines and lorries and all sorts of people, if they bring someone in, the visa requirements, the juxtaposed controls, whereby you have to show your passport in France before you get on the ferry, or the Eurostar, all of those are aimed at stopping people coming.


If you do get here, and you make a claim for asylum, you’re in a very inefficient process, with loads of delays, ways in which the government will try to make your life difficult, it will try to find reasons to say that you haven’t complied, that didn’t set up the right meeting, but you might not have got the notice, for example. You’re not allowed to work. So you are reliant on very small amounts of benefits, and you don’t really have any choice and accommodation, you can end up living in areas, where that can create tension, because obviously, if you put a load of young men into an underprivileged area, and then don’t allow them to work, they will be seen as hanging around and looking a bit threatening. It’s not their fault, but it can create tension.


So, it’s a very hostile environment in terms of how they’re having to live. And then they have an initial screening interview, and then they have to make a substantive asylum claim, and then maybe get some legal advice beforehand. And in the asylum interview, they have to show that they face persecution, if they’re not to be sent home. And the burden is on them, the government sees itself as having no obligation to assist them, even though it may have access to information. And it’s a really draining, frightening, scary process. You’re allowed an interpreter, but they may be of variable quality, and if you don’t perform well, that can be fatal to your claim. So, it’s very stressful, very difficult.


Very high proportions of some nationalities are accepted. If you come from Syria, Afghanistan, places like that, the chances are very high that your claim will be accepted, because you can’t send people back to those countries that are in such a bad way. So, I think we could make the barriers easier to some nationalities, that’s definitely true. And then you have to appeal. If you get an adverse decision after appeal, you have to find a lawyer. It’s just very, very hard for people who are in a foreign country miles from home, often very worried about their families, worried about what they’ve left behind, very uncertain, living in limbo, for a very long period; it’s a very dysfunctional system. They may be detained, which is unpleasant, or they may be living in very poor accommodation.


If they do receive refugee status, then they have a measure of security, although they’ve then got to navigate the world without much support. It can be quite difficult to bring in family members, if you’ve got family that were already in the country of origin, when you left, there is a more straightforward, cheaper process. But other than that, it can be very difficult to bring people in. So, the whole system is extremely difficult. I would say from the decision maker’s point of view, you’re having to establish the veracity of something that is probably incapable of being proved entirely. It can be quite difficult to know for sure whether something’s true. The standard of proof is supposed to be quite low. In asylum cases, it’s meant to be on the below the balance of probabilities, it’s meant to be reasonable likelihood, which is well below 50/50. But most people would say that the standard is not really applied in practice. Some people have to meet it at the higher level.


CJLPA: Thank you very much.


This interview was conducted by Eleanor Taylor, a geography graduate from the University of Manchester, currently studying the SQE to pursue a career as a commercial solicitor.


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