Family migration and human rights

07 Sep 2012

The latest squeeze on immigration was announced last month with the introduction of tighter controls on the entry of family members and on the operation of Article 8 under the Human Rights Act.

A sponsor of a family member (for instance a wife employed in the UK wanting to bring her husband to join her) will now have to prove a minimum income of £18,600 per annum.  Guarantees by third parties will not be accepted.

At the same time the route to settlement through Indefinite Leave to Remain for non-EEA migrant partners has been increased from 2 years to 5 years with an intermediate application to be made after 30 months. 

The Government is attempting to codify the application of some parts of Article 8 in an attempt to bring it into line with the tick box culture that is so prevalent in other areas of the immigration system.  So, for instance, the general residence qualification has been increased to 20 years or, in the case of those aged between 18 and 25, the applicant must have spent at least half of his or her life in the UK. 

Our view:

The sound of stable doors being closed after horses have bolted is becoming deafening.  We expect these changes to generate further evidence of the law of unintended consequences and to lead to yet more judgments from higher courts that the Government has acted unlawfully.  Indeed, when announcing the changes, the Home Office said it expected challenges. 

Leaving aside the political issues, we are witnessing another demonstration of the incompatibility of the Human Rights Act with English legal practice.  The Human Rights Convention was never intended to apply in the UK, where our rights were supposed to be protected by the rich heritage of Common Law.  The Convention was intended to bolster freedom in continental Europe as it emerged from the turmoil of the Second World War to face a new threat of tyranny from the East.  It is not surprising there is growing pressure for a Bill of Rights.