In immigration, reuniting families usually comes with obstacles and difficulties. The immigration rules were designed for entry and residence, but it is filled with both general provisions and potential exceptions. These exceptions, though presented as pathways for families to stay together, often cause unpredictability and risk for applicants. This uncertainty, coupled with the substantial financial and emotional costs of the application process, can discourage many people from pursuing their dreams of reuniting with family and this article will look at everything regarding family immigration rules, explaining how they can manufacture risk and exclusion, rather than inclusion.
Exclusion Not Inclusion For Manufacturing Risk in Family Immigration
The immigration rules have been structured to not exclude so many families from achieving secure immigration status. It’s important to know that this is not a matter of objective necessity but a policy choice.
Hence, it’s important to see these exceptions not as generous concessions but rather as exclusionary mechanisms. They operate as opportunities for authorities to exclude individuals or families who are deemed undesirable or non-conforming.
Moreover, the rules create two distinct classes of family migrants. The privileged class includes those who meet the ‘normal’ immigration rules, granting them five years of residence with the option to apply for settlement while the second class are those who qualify under an exception to the normal rule and will get only two and a half years of residence and must repeatedly reapply every two and a half years until they become eligible for settlement after a decade. This long route makes the affected family spend more.
Furthermore, the exceptions themselves have exclusionary effects. They introduce an unpredictable risk of refusal, along with substantial financial and emotional costs for applicants. This combination of risk and cost acts as a strong disincentive, discouraging marginalized and precarious families from even considering the application process. These families find it challenging to budget, both financially and emotionally, for an unpredictable and grueling quest for legal status.
Positive and Negative Discretion
Within immigration rules, exceptions come in two types which are positive and negative discretion. Positive discretion allows individuals to be granted status even if they don’t meet the ‘normal’ immigration rules. For example, a person may be permitted to sponsor a partner for a visa even if they do not meet the required earnings threshold, under some circumstances. Here, immigration officials have the authority to exercise positive discretion.
On the other hand, negative discretion can lead to the refusal of status even if an applicant meets the normal immigration rules. For instance, a person might meet the standard criteria for entry but be refused due to past behavior which can be seen to affect the public good.
Risk and Uncertainty
The level of risk associated with exceptions to the ‘normal’ immigration rules depends on how they are said and understood. When exceptions are tightly and objectively defined, the level of unpredictability and risk is potentially reduced. For instance, the rules regarding criminal convictions are relatively clear—a person with a sentence of over 12 months’ imprisonment is likely to be excluded but when exceptions are loosely defined and subjective, the risk increases significantly. Tests like ‘exceptional circumstances’ in the immigration rules represent the pinnacle of uncertainty. The meaning and interpretation of these tests are often obscure, even to immigration lawyers. They require subjective judgments, and applicants lack prior knowledge or experience to base their assessments on.
For instance, when an applicant must prove ‘exceptional circumstances,’ determining what qualifies as exceptional is ambiguous. Adding to the complexity, the rules refer to breaches of Article 8 of the European Convention on Human Rights, a legal concept laden with jurisprudence. The term ‘unjustifiably harsh consequences’ further complicates matters, introducing a moral judgment aspect.
Additionally, the quality of the relationship is assessed for partners and children seeking entry or residence. This evaluation is inherently subjective and ambiguous, as terms like ‘genuine and subsisting relationship’ leave much room for interpretation. Applicants often grapple with uncertainty regarding what evidence to submit to satisfy these tests.
Exceptional Circumstances For Manufacturing Risk in Family Immigration
The immigration rules for families abound with tests that require applicants to prove exceptional circumstances. These tests appear in various sections of the rules, such as Appendix FM for families and rules on deportation.
For instance, one provision enables the waiver of normal entry criteria if there are exceptional circumstances leading to unjustifiably harsh consequences for the applicant or their family. Deconstructing this provision reveals its complexity and obscurity. What constitutes an ‘exceptional’ circumstance remains unclear, as case law suggests it’s not merely a numerical rarity.
The existence of such ambiguous tests makes it impossible for applicants to assess their chances accurately. Even immigration lawyers may lack sufficient knowledge to predict outcomes. The outcome often depends on the discretion of different Home Office decision-makers.
Quality of Relationship For Manufacturing Risk in Family Immigration
Assessing the quality of a relationship is a requirement for partners and children to gain entry or residence. This exercise, however, is subjective and ambiguous.
Partners must demonstrate a ‘genuine and subsisting’ relationship, which courts interpret as more than a mere formal marriage. For parents, there’s a need to prove a ‘genuine and subsisting parental relationship’ or meet specific criteria. Yet, the application of these tests to diverse real-world family situations remains unclear.
These provisions regarding relationship quality, while less opaque than exceptional circumstance tests, add an element of uncertainty and often lead to excessive documentation in applications. Unconventional family situations may face higher refusal rates or added penalties.
Risk and Discrimination
Any discretionary judgment, whether positive or negative, carries a high risk of discrimination. This discrimination can be direct or indirect, based on stereotypes, assumptions, or prejudices. The subjective elements of immigration rules raise the likelihood of discrimination, be it based on race, nationality, class, gender, or other attributes.
The subjective nature of immigration rules exposes applicants, particularly marginalized groups, to discrimination. This exacerbates their situation by increasing the risk of refusal. Moreover, those who rely on these rules often lack the financial resources to bear the costs associated with an application.
Financial and Other Costs For Manufacturing Risk in Family Immigration
Immigration applications entail substantial financial and emotional costs. These costs rise significantly when the outcome is uncertain. Application fees are already high, with additional expenses for ‘health surcharge’ and legal advice.
Low-income families, who often rely on exceptions to normal rules, must make multiple applications over ten years before qualifying for settlement. This results in considerably higher costs than their high-income counterparts.
Beyond the government fees, low-income families face additional legal expenses due to the complexity of exceptions. Quality legal advice is essential but comes at a premium. The need for multiple applications further increases legal costs.
The process is time-consuming and stressful, impacting families’ well-being. Dependency on short-term visas may lead to lower-paying jobs and precarious living conditions.
Deterrent Effect
The combination of uncertainty, high stakes, and substantial costs creates a powerful deterrent to applying for immigration. This deterrent effect appears intentional.
However, this approach raises ethical concerns. Erecting barriers to family reunification through risk and costs has significant social and economic consequences for families. It strains relationships, imposes emotional burdens, and reinforces social exclusion.
While some mixed-status families may be denied relocation due to risks and costs, many will still undertake the journey, driven by the hope of family unity but even when successful, these families will face financial, emotional, and social costs, despite the original policy goal.
Positive discretion within immigration rules may look compassionate and flexible on the outside but it’s essential to consider these exceptions in their proper context. They offer limited and unpredictable relief from highly restrictive ‘normal’ immigration requirements.
Multiple layers of risk and cost are imposed on certain migrant families, discouraging them from pursuing legal status. The financial premium placed on families relying on exceptional circumstances rules creates a significant barrier to entry, while emotional costs add to the burden. This punitive approach undermines family unity, strains relationships, and imposes social and economic hardships.
In conclusion, the family immigration rules, despite their claims of inclusion, often function as exclusionary mechanisms, creating uncertainty, risk, and substantial costs for families striving for reunification. Addressing these issues is not only a matter of compassion but also a recognition of the importance of family unity and human rights in the immigration process.
