This Labour Government have concentrated their narrative and their action on immigration enforcement and removing people from the UK. This means carrying out enforcement action against people in our communities, our colleagues, our neighbours, our friends, our families, us.
The Government’s latest plans for the UK’s immigration system cover a multitude of reforms, but in relation to the White Paper, we are speaking out on the issues that are of most relevance to our social work practice. Our independent social work reports are usually bought to bear on cases where people are engaging their human rights, specifically right to a family and private life under Article 8 ECHR. Often this relates to the impact of an immigration decision on a child, particularly immigration decisions that have the effect of separating children from their family.
1. Children’s right to be cared for by their family
The Government have said they plan to:
“strengthen the public interest test to make it clear that Parliament needs to be able to control our country’s borders and take back control over who comes to, and stays in the UK, striking the right balance between individual family rights and the wider public interest.” (pg. 44)
We are dismayed and disappointed that instead of recognising people’s rights and needs in relation to family life, the Government is leaning into a narrative that human rights claims are frustrating the immigration system. As a social work charity, we are clear that there is a public interest in keeping children in their families, and in providing the circumstances for children to have stable, loving family homes. The Government need to be clear that ‘public interest’ also includes promoting family life, the care of children, and children’s rights.
2. The diversity of families
The Government has taken aim at the idea that cases about families are frequently made on ‘exceptional’ grounds. Stating that:
“An overly high proportion of family-related immigration cases are now decided on the basis that they are “exceptional” to the normal rules, rather than being in line with the rules set down by Parliament, and that undermines control and confidence.” (pg.40)
An ‘exceptional grounds’ decision means that a judge has found that a person’s circumstances do not fit inside the usual Immigration Rules (which Courts have determined are not a complete code for determining human rights claims), but that it would nonetheless be in breach of Article 8 ECHR for their cases to be refused. The judicial system needs a degree of discretion because people do not always fit neatly into boxes. Moreover, the Immigration Rules prescribe a particularly narrow conception of what is considered a legitimate family tie, relationships like siblings, alternative primary-carers, such as grandparents, aunts and uncles, are excluded from the Immigration Rules and must be decided on an ‘exceptional basis’. From a social work perspective, there is a striking difference between the way immigration law and family law interpret what is considered a legitimate family model. In a family law context, we recognise the fact that ‘family’ doesn’t always mean a ‘nuclear family’, and that acting in the interests of children requires a flexible and adaptable approach to family ties. The Government should consider that if cases are having to be decided on a discretionary basis ‘outside of the rules’ this might suggest that the rules are not able to accommodate the reality of what families look like and a more realistic and flexible approach is needed to reflect the complexity of family units.
The Government have said that they plan to set out a “new family policy”. This new policy will apply to everyone in the UK who wants a family member to be able to join them here. The new policy will also set out “clear relationship requirements”, expectations about English language skill and a family’s financial situation. In relation to this they have also said:
“We will also explore tightening our Suitability Rules on the family routes, to ensure people are of the good character we expect.” (pg.43)
Alongside this emphasis on “good character” they have also said that:
“…we will set out more detailed reforms and stronger measures to ensure our laws are upheld, including streamlining and speeding up the removals process. That will include establishing new procedures so that the Home Office can more easily take enforcement and removal action and revoke visas in a much wider range of crimes where non custodial sentences have been given, not just cases which are sent to prison.” (pg 62)
We are deeply concerned that a minor infraction (that may not lead to a custodial sentence) could be the basis of an immigration decision that will separate a family. As social workers, we feel the need to strongly reiterate the fact that families are messy, people are imperfect, and we have a duty to respect and value the diversity of what it means to live as a family. Separating children from their family ought to always be a last resort. We are reminded of Lady Hale’s clarity on the matter:
‘Taking a child away from her family is a momentous step, not only for her, but for her whole family, and for the local authority which does so… Families in all their subversive variety are the breeding ground of diversity and individuality. In a free and democratic society we value diversity and individuality. Hence the family is given special protection… As Justice McReynolds famously said in Pierce v Society of Sisters 268 US 510 (1925), at 535, “The child is not the mere creature of the State.”’
Baroness Hale, House of Lords, In In Re B (2009) 1 AC 11 at (20)
In making this new piece of legislation, as a matter of urgency, we ask the Government to follow the guidance set out in ‘Family Test’ policy, and if this impact assessment has already been completed, we ask that it is made publicly available. Similarly, this piece of legislation will impact the rights of children, as such the Government should publish a Child Rights Impact Assessment.
It is vital that politicians, and public debate, takes a transparent and balanced approach to immigration policy. In all the talk of ‘being tough on migration’ we also need to hear, understand and give due weight to the impact that this will have on children, particularly where an immigration decision has the effect of separating a child from their family.