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Moulding the migrant family

  • Helena Wray (a1)

Abstract

This paper offers a critical perspective on how immigration control regulates the family lives of British residents and nationals of migrant descent. Family migration is problematic for a government determined to restrict long-term immigration to the skilled. The extended or ‘corporate’ family is particularly problematic because it also causes the reproduction of forms of family life that are regarded as oppressive and a barrier to cohesion. Policies have tended to minimise these forms of migration, and recent changes and proposals are consistent with that. The result is the increased marginalisation or exclusion of some migrants and pressure on migrant family life to conform more closely to majority norms.

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1 J Eekelaar Family Law and Personal Life (Oxford: Oxford University Press, 2002) pp 9–17, 23–26; U Beck and E Beck-Gernsheim Individualization (London: Sage, 2001); J Eekelaar and M Maclean ‘Marriage and the moral bases of personal relationships’ (2004) 31(4) Journal of Law and Society 510.

2 The paper does not consider families entering the UK for work, business or study, although they are affected by some of the same issues. An important question, also not considered here, is the family life of refugees. Restrictive rules cause difficulties including for those who care for children whose birth parents have died or disappeared (eg MK (Somalia) v ECO [2008] EWCA Civ 1453, [2009] 2 FLR 138).

3 On the ‘sham marriage’, see Wray, HAn ideal husband? Marriages of convenience, moral gate-keeping and immigration to the UK’ (2006) 8(3) European Journal of Migration and Law 303 at 313–319.

4 The primary purpose rule required applicants for entry as spouses or fiancé(e)s to demonstrate that the primary purpose of the marriage was not immigration. It was used mainly against South Asian male applicants; see Sachdeva, S The Primary Purpose Rule in British Immigration Law (Stoke on Trent: Trentham Books, 1993). On administrative measures, see H Wray A Stranger in the Home: Immigration to the UK through Marriage since 1962 PhD thesis, London University (2009) ch 5.

5 The term ‘corporate family’ has been adopted from R Ballard ‘Inside and outside: contrasting perspectives on the dynamics of kinship and marriage in contemporary South Asian transnational networks’ in Grillo, R (ed) The Family in Question: Immigrants and Minorities in Multicultural Europe (Amsterdam: University of Amsterdam Press, 2008) pp 3770.

6 Transnational migrants may live dual lives, ‘are often bilingual, move easily between different cultures, frequently maintain homes in two countries, and pursue economic, political and cultural interests that require their presence in both’: Portes, AImmigration theory for a new century: some problems and opportunities’ (1997) 31 International Migration Review 799 at 812.

7 Ballard, above n 5, p 49.

8 Home Office Statistical Bulletin Control of Immigration Statistics UK 2007 (10/08, 2008) p 28.

9 Ballard, above n 5, pp 48–51; K Bhopal ‘South Asian women and arranged marriages in East London’ in T Barot et.al (eds) Ethnicity, Gender and Social Change (Basingstoke: Macmillan Press, 1999); G Gangoli et.al Forced Marriage and Domestic Violence among South Asian Communities in North East England (Bristol: School for Policy Studies, University of Bristol, 2006).

10 Ibid; see also Shaw, AKinship, cultural preference and immigration: consanguineous marriage among British Pakistanis’ (2001) 17(2) Journal of the Royal Anthropological Institute 315.

11 Shaw, ibid, at 324–326.

12 Samad, Y and Eade, J Community Perceptions of Forced Marriage (London: Foreign and Commonwealth Office, 2002) pp 4852; Shaw, ibid, pp 315–320; E Beck-Gernsheim ‘Transnational lives, transnational marriages: a review of the evidence from migrant communities in Europe’ (2007) 7(3) Global Networks 271 at 283; Ann Cryer MP Hansard HC Deb, col 165W, 2 November 2006.

13 Wray, HGuiding the gatekeepers: entry clearance for settlement on the Indian sub-continent’ (2006) 20(2) Tottell's Journal of Immigration, Asylum and Nationality 112.

14 Home Office Secure Borders, Safe Haven: Integration with Diversity in Modern Britain Cm 5387, 2002, p 18.

15 For example, Hansard HC Deb, col 1241W, 8 February 2002; Hansard HC Deb, col 334W, 9 May 2002; Hansard HC Deb, cols 276–279WH, 19 March 2003; Hansard HC Deb, cols 517–519, 17 July 2003; Hansard HC Deb, cols 264–271WH, 17 September 2003.

16 For example, H Ousley Community Pride not Prejudice: Making Diversity Work in Bradford (Bradford: Bradford Vision, 2001); T Cantle Community Cohesion: A Report of the Independent Review Team (London: Home Office, 2001); speech by Gordon Brown at the Fabian New Year Conference, London, 14 January 2006, available at http://www.hm-treasury.gov.uk/speech_chex_140106.htm; speech by Tony Blair Our Nation's Future, Multiculturalism and Integration, delivered at Downing Street, 8 December 2006, available at http://www.number10.gov.uk/Page10563; Lord Goldsmith Our Common Bond (London: Ministry of Justice, 2008) and a series of articles published in Prospect between 2004 and 2006. A summary of the issues may be found in D Kostakopoulou ‘Thick, thin and thinner patriotisms: is this all there is?’ (2006) 26(1) Oxford Journal of Legal Studies 73.

17 N Yuval-Davis et.al ‘Secure borders and safe haven and the gendered politics of belonging: beyond social cohesion’ (2005) 28(3) Ethnic and Racial Studies 513 at 516. See also D Stasiulis ‘Hybrid citizenship and what's left’ (2004) 8(3) Citizenship Studies 295; T Modood ‘Muslims and the politics of difference’ (2003) 74(3) Political Quarterly 100 at 101.

18 Cantle, above n 16; Ousley, above n 16. For a critique, see Yuval-Davis et.al, ibid, at 524–525 and R Ballard ‘Living with difference: a forgotten art in urgent need of revival?’ in J Hinnells (ed) Religious Reconstruction in the South Asian Diasporas: From One Generation to Another (London: Palgrave Macmillan, 2007) pp 265–301 at pp 277–286; N Finney and L Simpson ‘Sleepwalking to Segregation?’: Challenging Myths about Race and Migration (Bristol: The Policy Press, 2009).

19 A Phillips and S Saharso ‘The rights of women and the crisis of multiculturalism’ (2008) 8 Ethnicities 291 at 291; see also D McGoldrick ‘Multiculturalism and its discontents’ (2005) 5(1) Human Rights Law Review 27 at 36–45; Ballard, ibid; T Modood Multiculturalism: A Civic Idea (Cambridge: Polity Press, 2007) pp 10–14.

20 Above n 16, p 3.

21 Home Office/Border and Immigration Agency The Path to Citizenship: Next Steps in Reforming the Immigration System (London: Home Office/UK Border Agency, 2008).

22 Finney and Simpson, above n 18, p 10.

23 Ibid; Modood, above n 19.

24 Kostakopoulou, above n 16; Y Schibel Refugee Integration: Can Research Synthesis Inform Policy? RDS On-line Report 13/02 (London: Home Office, 2002) p 4, available at http://www.homeoffice.gov.uk/rds/pdfs2/rdsolr1302.pdf. According to Modood, above n 19, pp 47–48, integration involves reciprocal obligations between migrant and the host society. By contrast, assimilation involves adaptation by the incomer so as to comply with norms set by the host society.

25 See, eg, the introduction by Jacqui Smith, Home Secretary in Home Office/Border and Immigration Agency, above n 21, p 5.

26 Employment, housing, education and health, eg, are considered key domains for assessing refugee integration; A Ager. and A Strang ‘Understanding integration: a conceptual framework’ (2008) 21(2) Journal of Refugee Studies 166.

27 For a critique, see Yuval-Davis et.al, above n 17; M Hickman et.al Immigration and Social Cohesion in the UK: The Rhythms and Realities of Everyday Life (York: Joseph Rowntree Foundation, 2008); D Kostakopoulou ‘Matters of control: integration tests and naturalisation reform in western Europe’ (2009) Journal of Ethnic and Migration Studies forthcoming.

28 C Joppke ‘Limits of integration policy: Britain and her Muslims’ (2009) 35(3) Journal of Ethnic and Migration Studies 453; Joppke however posits controversially that the UK government has made extensive efforts to accommodate Muslim sensibilities and this has been counter-productive.

29 For a summary of these concerns, see ibid, at 460–461.

30 The Hassidic Jewish or the London-based Arab business communities, eg.

31 There were 1.6 million Muslims in the UK in 2001: see the website available at http://www.statistics.gov.uk/cci/nugget.asp?id=954. Muslims are at greater risk of poverty than other religious groups. Around 70% of Bangladeshi children are poor: L Platt Poverty and Ethnicity in the UK (Bristol: The Policy Press, 2007).

32 Bunglawala, Z Valuing Family, Valuing Work: British Muslim Women and the Labour Market (London: The Young Foundation/London Development Agency, 2009).

33 There is not necessarily a causal connection between assimilation and upward social mobility: H Gans ‘Acculturation, assimilation and mobility’ (2007) 30(1) Ethnic and Racial Studies 152. Of the July 7th bombers, one had been a Westernised teenager and worked in a primary school, one was a sports science graduate and another was a convert of Jamaican origin: see the website available at http://news.bbc.co.uk/1/shared/spl/hi/uk/05/london_blasts/investigation/html/bombers.stm.

34 See, eg, Roggeband, C and Verloo, MDutch women are liberated, migrant women are a problem: the evolution of policy frames on gender and migration in the Netherlands 1995–2005’ (2007) 41(3) Social Policy and Administration 271.

35 For a general discussion, see Gangoli et.al, above n 9, pp 3–4; M Dustin and A Phillips ‘Whose agenda is it? Abuses of women and abuses of “culture” in Britain’ (2008) 8 Ethnicities 405.

36 Gangoli, ibid, p 4; Dustin and Phillips, ibid, at 407–409; Phillips and Saharso, above n 19.

37 Foreign and Commonwealth Office/Home Office Forced Marriage Statutory Guidance: Consultation Paper (London: TSO, 2008) p 9.

38 Above n 5, p 55.

39 R Berthoud Family Formation in Multi-cultural Britain: Three Patterns of Diversity ISER Working paper (2000/34, Institute of Social and Economic Research, University of Essex, 2000) p 18; Ballard, above n 5, pp 53–56.

40 C Butler ‘Cultural diversity and religious conformity: dimensions of social change among second generation Muslim women’ in Barot, above n 9; Bhopal, above n 9; H Bradby ‘Negotiating marriage: young Punjabi women's assessment of their individual and family interests’ in Barot, above n 9; Gangoli et.al, above n 9, pp 12–13.

41 ‘Muslim girls surge ahead at school but held back at work’The Guardian 7 September 2006; Equal Opportunities Commission Moving On Up? The Way Forward (London: EOC, 2007) p 12.

42 Connors, H etal Minority Ethnic Students in Higher Education: Interim Report Research Report RR448 (London: Institute for Employment Studies, 2003).

43 Ibid; Berthoud, above n 39; Bunglawala, above n 32.

44 Berthoud, ibid, p 18.

45 Eekelaar and Maclean, above n 1, at 397.

46 Eg, Foreign and Commonwealth Office Forced Marriage: A Wrong Not a Right (London: FCO, 2005) p 7.

47 Gangoli et.al, above n 9, p 14.

48 See R Ballard ‘Riste’ and ‘Ristedari’: The Significance of Marriage in the Dynamics of Transnational Kinship Networks, available at http://www.casas.org.uk/papers/pdfpapers/ristedari.pdf.

49 Ibid, p 12.

50 Although many parties to arranged marriages describe the closeness that may evolve after marriage; Gangoli et.al, above n 9, pp 10–11, 18.

51 Ibid, pp 13–14.

52 ‘Minister warns of “inbred” Muslims’ Sunday Times 10 February 2008; ‘Marriage between cousins is fine, say scientists’ Daily Telegraph 24 December 2008.

53 Bhopal, above n 9, pp 125–127; Shaw, above n 10, at 329–331; Samad and Eade, above n 12; Beck-Gernsheim, above n 12, at 283.

54 Beck-Gernsheim, ibid, at 279–285.

55 Gangoli et.al, above n 9, pp 9–10; Samad and Eade, above n 12, pp 72, 90. Where persuasion ends and coercion begins may be hard to distinguish; see, eg, the definition of a forced marriage in Forced Marriage (Civil Protection) Act 2007, s 1.

56 ‘Disabled youngsters forced into marriage to provide passports’ The Independent 27 July 2008; Home Affairs Committee Immigration Control, Fifth Report of Session 2005–6 HC 775-III Ev 321.

57 Forced Marriages of People with Learning Disabilities Briefing, Voice UK, available at http://www.voiceuk.org.uk/docs/EDM_1568_Forced_Marriage_People_with_Disabilities_briefing.pdf.

58 KC and Others v Westminster Social Services and IC [2009] 2 WLR 185.

59 D Flynn ‘New borders, new management: the dilemmas of modern immigration policy’ (2005) 28(3) Ethnic and Racial Studies 463 at 464–465 (original emphasis).

60 UK Border Agency A Strong New Force at the Border (London: UK Border Agency, 2008).

61 Home Office A Points Based System: Making Migration Work for Britain Cm 6741, 2006; Immigration, Asylum and Nationality Act 2006, ss 15–23.

62 HC 395, para 320 as amended.

63 L Hassan ‘Deterrence measures and the preservation of asylum in the United Kingdom and United States’ (2000) 13(2) Journal of Refugee Studies 184; S Chakrabarti ‘Rights and rhetoric: the politics of asylum and human rights culture in the United Kingdom’ (2005) 32(1) Journal of Law and Society 131.

64 Amnesty International UK Get It Right: How Home Office Decision-Making Fails Refugees (London: Amnesty International, 2004); Independent Asylum Commission/Citizens for Sanctuary Safe Return and Deserving Dignity, available at http://www.citizensforsanctuary.org.uk/pages/reports.html.

65 Home Office, above n 61; Home Office/Border and Immigration Agency, above n 21.

66 For further discussion, see Wray, above n 13.

67 Wray, above n 3, at 314–315.

68 Guardian Weekend 25 May 2002 at 57.

69 Above n 3.

70 Home Affairs Committee, above n 56, Ev 231–236.

71 A Cryer ‘Feminism in retreat from male tradition’ Tribune 26 September 2003 at 16–17.

72 Immigration (European Economic Area) Regulations 2006, SI 2006/1003, para 12(1)(b); Metock v Minister for Justice, Equality and Law Reform, Case C-127/08 [2009] 2 WLR 821; Bigia and Others v ECO [2009] EWCA Civ 79.

73 HC 395, paras 277–295.

74 Rewal Raj v ECO, New Delhi [1985] Imm AR 15; Mohd Meharban v ECO, Islamabad [1989] Imm AR 57.

75 HC 395, paras 278–280, 296.

76 Wray, above n 3, at 309–312; H Wray ‘Hidden purpose: ethnic minority marriages and the immigration rules’ in P Shah and W Menski (eds) Migrations, Diasporas and Legal Systems in Europe (London: Routledge Cavendish, 2006) pp 163–184.

77 Commission for Racial Equality Immigration Control Procedures: Report of a Formal Investigation (London: Commission for Racial Equality Immigration, 1985); R Sondhi Divided Families: British Immigration Control in the Indian Sub-Continent (London: Runnymede Trust, 1987); S Juss Discretion and Deviation in the Administration of Immigration Control (London: Sweet and Maxwell, 1997).

78 Wray, above n 13.

79 Ibid.

80 W Menski ‘Dodgy Asians or dodgy lawyers? The story of H’ (2007) 21(4) Journal of Immigration, Asylum and Nationality Law 284. For a discussion of entry clearance attitudes, see Wray, above n 13.

81 Wray, above n 76, p 166.

82 Wray, above n 13.

83 Wray, above n 3, at 311.

84 Above n 64.

85 Immigration and Asylum Act 1999, s 24.

86 Beoku-Betts v Secretary of State for the Home Department [2008] UKHL 39, [2008] 3 WLR 166; Chikwamba (FC) v Secretary of State for the Home Department [2008] UKHL 40, [2008] 1 WLR 1420; EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41, [2008] 3 WLR 178.

87 Baiai and Others v Secretary of State for the Home Department [2008] UKHL 53, [2009] 1 AC 287.

88 Lord Bingham of Cornhill at [29]–[31].

89 See the website available at http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/coa/coa_guide.pdf; Changes to the Certificate of Approval Scheme UK Border Agency press release, 9 April 2009, available at http://www.ind.homeoffice.gov.uk/sitecontent/newsarticles/changes-to-the-certificate-of.

90 For more discussion, see Wray, above n 3, at 313–319 and L Pilgram ‘Tackling “sham marriages”: the rationale, impact and limitations of the Home Office's “certificate of approval” scheme’ (2009) 23(1) Journal of Immigration, Asylum and Nationality Law 24.

91 Home Office/Border and Immigration Agency Marriage Visas: Pre-Entry English Requirements for Spouses (London: Home Office/Border and Immigration Agency, 2007).

92 UK Border Agency Marriage Visas: The Way Forward (London: UK Border Agency, 2008) pp 78.

93 Home Office/Border and Immigration Agency Marriage to Partners from Overseas (London: Home Office/Border and Immigration Agency, 2007).

94 UK Border Agency Analysis of Marriage Visa Consultation Reponses (London: UK Border Agency, 2008).

95 HC 1113.

96 Immigration Directorate Instructions, ch 8, s 1, annex A2.

97 New Arrangements for Partners UK Border Agency press release, 13 March 2009, available at http://www.ukba.homeoffice.gov.uk/sitecontent/newsfragments/Newarrangementsforpartners?area=Residency; Letter from Lord Brett to Lord Avebury, 17 December 2008, ILPA members' mailing.

98 Eg, responses from individuals were treated identically to responses from expert organisations representing many members.

99 Above n 96.

100 Home Affairs Committee, above n 56, Ev 334.

101 Marriage visa plan need a rethink The Guardian 29 July 2008, available at http://www.guardian.co.uk/commentisfree/2008/jul/29/immigration.religion.

102 M Hester et.al Forced Marriage: The Risk factors and the Effect of Raising the Minimum Age for a Sponsor, and of Leave to Enter the UK as a Spouse or Fiancé(e) Research Summary, available at http://www.bris.ac.uk/sps/downloads/FPCW/forcemarriageresearchsummary08.pdf; Home Affairs Committee Domestic Violence, Forced Marriage and ‘Honour’-Based Violence Sixth Report of Session 2007–8, HC263-I, p 139.

103 S Razack ‘Imperilled Muslim women, dangerous Muslim men and civilised Europeans: legal and social responses to forced marriages’ (2004) 12 Feminist Legal Studies 129.

104 Samad and Eade, above n 12, pp 103–104.

105 Above n 93, p 6.

106 Ibid, p 7.

107 See Wray, above n 4, ch 6 on problems of migrant spouses suffering domestic violence.

108 A Phillips and M Dustin ‘UK initiatives on forced marriage: regulation, dialogue and exit’ (2004) 52 Political Studies 531 at 546.

109 MI (Paragraph 298 (iii): ‘independent life’) Pakistan [2007] UKAIT 00052; NM (‘leading an independent life’) Zimbabwe [2007] UKAIT 00051.

110 HC 395, para 297. ‘Serious and compelling reasons’ may also be used to permit a child to join another relative.

111 Immigration Directorate Instructions, ch 8, s 3, annex M; see, however, Nmaju v IAT [2001] INLR 26.

112 Entry Clearance Guidance, ch 14, s 6.

113 Rudolph [1984] Imm AR 84; Hardward 00/TH/01522.

114 HC 395, paras 309–316.

115 MN (non-recognised adoptions: unlawful discrimination?) India [2007] UKAIT 00015.

116 As demonstrated, eg, by the High Court Family Division in PD v MD [2008] 1 FLR 1475.

117 Boadi v ECO Ghana [2002] UKIAT 01323; see, however, the earlier case of Kamande v ECO Nairobi [2002] UKIAT 06129.

118 Re H (A Minor) (Adoption: Non Patrial) [1997] 1 WLR 791; Re J (A Minor) (Adoption: Non-Patrial) [1998] 1 FLR 225.

119 S v ECO New Delhi [2005] EWCA Civ 89, [2005] 2 FLR 219.

120 Re B (A Minor) [1999] 2 AC 136.

121 Singh v ECO New Delhi [2004] EWCA Civ 1075, [2005] QB 608.

122 P Shah ‘Transnational Hindu law adoptions: recognition and treatment in Britain’ (2009) 5(2) International Journal of Law in Context 107.

123 SK (‘adoption’ not recognised in UK) India [2006] UKAIT 00068; a UK adoption procedure will be necessary after entry.

124 For the full requirements, see HC 395, para 317.

125 Immigration Directorate Instructions, ch 8, annex V, para 1.

126 MB (Somalia) v ECO [2008] EWCA Civ 102.

127 Eg, Dyson LJ at [49], although his comments were echoed elsewhere in the judgement; letter from UK Border Agency to Camden Community Law Centre, 11 August 2008, ILPA members' mailing.

128 KP (Para 317: mothers-in-law) India [2006] UKAIT 00093.

129 Visa Officer Islamabad v Sindhu [1978] Imm AR 147; Alyha Begum (1999) 13(3) INLP 107.

130 Zohra Begum [1994] Imm AR 381.

131 Zaman v ECO Lahore [1973] Imm AR 71; ECO New Delhi v Malhan [1978] Imm AR 209.

132 Eg, MB, above n 126, where the refugee son and his mother had been separated for 10 years after he fled to the UK and JB (India) and Others v ECO [2009] EWCA Civ 234, [2005] 2 FLR 219, where there was not the necessary level of additional dependency to establish family life between adult children and parents.

133 Home Office Statistical Bulletin, above n 8, p 71.

134 KJ (‘own or occupy exclusively’) Jamaica [2008] UKAIT 00006; AB (third party provision of accommodation) [2008] UKAIT 18.

135 Entry Clearance Guidance, ch 9, para 2.

136 KA and Others (adequacy of maintenance) [2006] UKAIT 65; AM (Ethiopia) and Others v ECO [2008] EWCA Civ 1082.

137 MK (Somalia) v ECO [2007] EWCA Civ 1521.

138 HC395, paras 281(iv), 297(iv) and 317(v). Immigration Directorate Instructions say that, exceptionally, temporary third party support may be accepted if it will clearly be finite (ch 8, annex F, para 5.1).

139 Above n 137. Even step-parents may be regarded as third parties; see YS and YY (paragraph 352D, British national sponsor former refugee) Ethiopia [2008] UKAIT 00093.

140 Ibid, paras 92, 127.In any event, even acceptable sponsors need only establish the probability of maintenance for the 6-month period following entry: Shakila Kausar (17428) 13(2) INLP 78.

141 Hansard HC Deb, col 786, 16 November 1988. See also P Shah ‘Attitudes to polygamy in English law’ (2003) 52 International and Comparative Law Quarterly 369.

142 Lord Goldsmith, above n 16; Home Office/Border and Immigration Agency, above n 21.

143 Home Office/UK Border Agency The Path to Citizenship: Next Steps in Reforming the Immigration System: Government Response to Consultation (London: Home Office/UK Border Agency, 2008).

144 References to clauses in the Bill refer to the version introduced to the Lords. Some numbering has changed during passage; for the original version, see the website available at http://www.publications.parliament.uk/pa/ld200809/ldbills/015/2009015.pdf.

145 An explanation and links to documentation including the Draft Bill is available at http://www.ind.homeoffice.gov.uk/managingborders/simplifying.

146 Clause 45(3) of the Bill defines temporary residence as limited leave to enter or remain granted for a purpose for which probationary citizenship may be granted, probationary citizenship as limited leave to be further defined by regulations and permanent residence as indefinite leave to enter or remain.

147 Bill, cl 38(3).

148 Ryan, BIntegration requirements: a new model in migration law’ (2008) 22(4) Journal of Immigration, Asylum and Nationality Law 303 at 314.

149 Bill, cl 39(1).

150 Home Office/Border and Immigration Agency, above n 21, p 3: to qualify, a playgroup must encourage ‘the different communities to interact’.

151 Bill, cl 39(1).

152 Above n 21, pp 28–29.

153 Immigration Act 1971, s 3(6); UK Borders Act 2007, s 32.

154 Home Office/UK Border Agency, above n 143, p 16.

155 Draft Bill, cl 34(1).

156 Above n 21, p 29.

157 Above n 143, p 17.

158 Draft Bill, cl 33(1).

159 Ibid, cl 3; Lord Brett Hansard HL Deb, col 543, 2 March 2009.

160 Above n 21, p 26.

161 Bill, cl 38(3).

162 Home Office/UK Border Agency, above n 143, pp 22–23; see the website available at http://www.communities.gov.uk/news/corporate/1180107.

164 Home Office/Border and Immigration Agency, above n 21, pp 22–23.

165 Ibid, p 31.

166 Until 31 March 2009, applicants who failed the test were automatically given further limited leave and had part of their fee refunded. They must now apply for further leave and there is no refund, a change that will lead to more migrants remaining unlawfully and becoming liable to removal; see UK Border Agency press release, 19 March 2009, available at http://www.ukba.homeoffice.gov.uk/sitecontent/newsarticles/knowledgeofliferequirement?area=Residency.

167 The House of Commons Home Affairs Committee had concerns about the naturalisation provisions of the Bill for similar reasons. It doubted whether the introduction of probationary citizenship would increase levels of naturalisation. While it supported the principle of ‘active citizenship’, it was concerned at the absence of flexibility in its application, the possible difficulties of implementation and its effect on vulnerable groups: House of Commons Home Affairs Committee Borders, Citizenship and Immigration Bill: Fifth Report of Session 2008–9 HC 425 (London: TSO, 2009) pp 25–26. The Joint Committee on Human Rights shared these concerns: Joint Committee on Human Rights Legislative Scrutiny: Borders, Citizenship and Immigration Bill – Ninth Report of Session 2008–9 HL Paper 62/HC 375 (London: TSO, 2009) pp 18–19.

168 For a discussion of restrictions under that Act, see H Wray ‘The Aliens Act and the immigration dilemma’ (2006) 33(2) Journal of Law and Society 302.

169 See Home Office/Border and Immigration Agency, above n 21, p 17; E Kofman ‘Family related migration: a critical review of European studies’ (2004) 30(2) Journal of Ethnic and Migration Studies 243 at 253–256.

170 Eg, Chikwamba v Secretary of State for the Home Department [2008] UKHL 40, [2008] 1 WLR 1420; R (Baiai and Others) v Secretary of State for the Home Department [2008] UKHL 53, [2009] 1 AC 287.

171 Metock v Minister for Justice, Equality and Law Reform, Case C-127/08 [2009] 2 WLR 821; see also Migration News Sheet January 2009, pp 1–2.

172 Watch, Human Rights The Netherlands: Discrimination in the Name of Integration – Migrants' Rights under the Integration Abroad Act (New York: Human Rights Watch, 2008).

* Since this article was written, the Borders, Citizenship and Immigration Bill has received the Royal Assent and is the Borders, Citizenship and Immigration Act 2009. The government has opened a consultation on a points-based test for citizenship and a more demanding two-stage test of knowledge of language and life in the UK. It also intends to introduce a mandatory pre-application language test for spouses in 2011 (Home Office/UK Border Agency Earning the right to stay: A new points test for citizenship, available at http://www.ukba.homeoffice.gov.uk/sitecontent/documents/aboutus/consultations/221878/earning-the-right-to-stay/).

Moulding the migrant family

  • Helena Wray (a1)

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