In a letter to Immigration Minister Mark Harper, the Children's Commissioner for England has said that she is gravely concerned that the Family Migration Rules as currently written and applied fail to fulfil the UK's obligations under the United Nations Convention on the Rights of the Child (UNCRC).
The 7-page letter was published on the Children's Commissioner's website on September 26th and you can read it here.
The Commissioner says her office has received a large amount of correspondence from parents and equally concerned grandparents whose families are currently separated from each other due to the way the Rules have begun to work.
After considering the cases before her, the Children's Commissioner is concerned that the Rules and their application fail to fulfil rights under Articles 3 (best interests), 5 (parental guidance), 9 (right not to be separated from parents other than in child's best interests), 10 (family reunification) and 18 (parental responsibilities: state assistance) of the UNCRC.
She says the current Family Migration Rules fail to give proper consideration to the rights of children affected by the Rules and the State's obligations under the UNCRC actively to facilitate parents' determination to exercise their primary duties towards their children.
On the child's right not to be separated from its parents, for example, the Commissioner's letter states: "Article 9(1) is directly engaged in many of the cases I have been sent, and have now reviewed. Even where the putative UK sponsor parent has made a forced and often clearly painful choice to return to the UK, either alone or with his or her British Citizen children, so as to try to work to meet the financial thresholds, I am now clear that such a choice to divide the family would not have been made had it not been for the onerous financial requirements of the 2012 Rules. In other cases sent to my office, a non-EEA spouse has had to come to the UK on a time-limited visit visa rather than apply for a spouse visa, knowing in advance that due to the Rules, the latter would certainly be refused. Separation then inevitably follows, because such visas are time limited."
The letter also states: "I am now deeply concerned that spouse visa applications are not being dealt with in the positive, humane and expeditious manner required by Article 10 of the UNCRC."
The Commissioner says she strongly endorses the recommendations of the All-Party Parliamentary Group on Migration in their Report of the Inquiry into the New Family Migration Rules (June 2013) in particular the report's third recommendation, that: "The family migration rules should ensure that children are supported to live with their parents in the UK where their best interests require this. Decision-makers should ensure that duties to consider the best interests of children are fully discharged when deciding non-EEA partner applications. Consideration should be given to enabling decision-makers to grant entry clearance where the best interests of children require it."