Extensive look at the legal framework relating to family reunification and its implementation in practice
A significant new report by the Centre for Research in Law (CRiL) at the University of Bedfordshire takes a usefully comprehensive look at refugee family reunification in the UK.
The report was commissioned and funded by the Families Together Programme and was authored by Dr Silvia Borelli, Fiona Cameron, Dr Elena Gualco and Claudia Zugno of CRiL. Families Together is a multi-donor grant fund that is hosted by the British Red Cross and is led and directed by a coalition of over 90 organisations.
You can download the 111-page report here.
The report provides a holistic picture of the many challenges faced by refugees who wish to be reunited with their family members under the UK immigration system, and the challenges faced by the legal professionals and organisations which seek to support them.
The authors said: "In the United Kingdom, the legal and policy framework regulating family reunification for refugees and beneficiaries of humanitarian protection has been the subject of extensive debate – and criticism – for some years. Common concerns raised by refugees, refugee support charities and independent observers include the restrictive rules on eligibility, the unnecessarily burdensome nature of the application process, the lack of free qualified legal support and the unpredictability of the decision-making process.
"This report aims to contribute to this debate by providing a comprehensive assessment of the UK legal framework relating to refugee family reunification and its implementation in practice, including the position in respect of legal aid, and the availability of qualified assistance in making applications for family reunification."
The research for the report included conducting interviews with solicitors, OISC-registered advisers, and the staff of refugee support charities, law centres and university legal clinics.
A handy overview of the report's structure explains: "The first two chapters provide an overview of the legal framework applicable to refugee family reunification and applications for [refugee family reunion] in the UK legal system. Chapter 2 sets the scene for the analysis of the UK system by providing an overview of the international legal framework and practice relevant to family reunification for refugees. Chapter 3 then examines the legal framework for refugee family reunification in the UK, in particular the routes under Part 11 and Appendix FM of the Immigration Rules and the possibility for leave to be granted 'outside the Rules' on the basis of exceptional circumstances or compassionate factors.
"The focus of the report then shifts to the practical issues surrounding the application of the relevant law and an assessment of how easy it is in practice for refugees in the UK to access and enjoy the right to family reunification. Chapter 4 examines the application process through to decision-making from a number of points of view, with particular reference to problems identified both through interviews and in published material. Chapter 5 looks at the availability of legal assistance in England and Wales, in particular the impact of the entry into force of [the Legal Aid, Sentencing and Punishment of Offenders Act 2012] LASPO, and the possibility of using Exceptional Case Funding to manage the resulting gap in the availability of legal aid. Chapter 6 focuses on the organisations that provide services for refugee family reunification, the different ways of delivery of such services that have been adopted and how such organisations have managed the many challenges that they face. Finally, Chapter 7 sets out the report's conclusions and recommendations."
Overall, the report finds that despite some significant positive developments in recent years, the UK system for refugee family reunification presents some fundamental flaws, which prevent refugees and other beneficiaries of international protection in the UK from fully enjoying their right to family reunification.
The report's key findings are as follows:
• The current UK legal framework on refugee family reunification is not in line with international standards and best practice.
• Refugee family reunification is a protection matter and should be treated as such.
• The refugee family reunion application process is not straightforward and evidentiary requirements are particularly burdensome.
• The Home Office decision-making process has improved, but the "culture of disbelief" remains an issue.
• The lack of legal aid for refugee family reunion remains a significant obstacle to the enjoyment of the right to family reunification.
• The pro bono sector has stepped in to fill the gap in free legal assistance created by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), but it is unable on its own to fully meet demand for refugee family reunion cases.
Recommendations are made throughout the report with the aim of improving the effectiveness and fairness of the UK family reunification system in practice.
Amongst the report's recommendations for the Home Office is a call for the simplification and rationalisation of the Immigration Rules governing refugee family reunion, with the authors noting that the current rules are unnecessarily complex, difficult to navigate and at points internally inconsistent.
The complexity means that qualified legal support is necessary for the majority of refugees in order to successfully navigate the process.
While the Government justified cutting legal aid for immigration cases on the basis that they are straightforward, the report states: "[T]he UNHCR … has pointed to 'a whole range of complexities' faced by refugees and their families during the family reunification process and noted that expert and experienced legal advice is absolutely necessary in order to deal with such difficulties and prepare strong and successful applications … The idea that the [refugee family reunion] process is in any way straightforward was also vehemently challenged by all the practitioners and caseworkers we interviewed and sponsors rejected any suggestion that the [refugee family reunion] process was easy to navigate. None of the sponsors interviewed had attempted the application by themselves. When asked why they did not think of undertaking an application on their own, all of the sponsors interviewed reported that the application process was complex and the application was too important for them to try and risk getting it wrong. Language barriers were frequently mentioned, together with lack of understanding of what the relevant forms required. Further, none of the sponsors interviewed were aware of anyone in their communities who had made the application on their own and they reported that friends and other members of their community who had advised them about family reunification in the first place had told them not to try to complete the application on their own, because 'it was impossible without a solicitor'."
The Families Together coalition says the publication of the report comes at a time when the principle of refugee protection and family reunion are at significant risk of being undermined in the UK by the Government's "deeply alarming" proposals in its New Plan for Immigration.
The Coalition calls on the Government to:
• Expand the criteria of who qualifies as a family member for the purposes of refugee family reunion allowing adult refugees in the UK to sponsor their adult children and siblings who are under the age of 25; and their parents;
• Give unaccompanied refugee children in the United Kingdom the right to sponsor their parents and siblings who are under the age of 25 to join them under the refugee family reunion rules;
• Reintroduce legal aid for all refugee family reunion cases.
With regard to legal aid, Families Together noted in a recent briefing: "Since 2012, refugee family reunion cases have not been eligible for legal aid. Refugees must navigate complex legal processes and immigration rules whilst enduring prolonged separation from their families and the many harms which this can cause; including isolation, emotional distress and lack of confidence, as well as practical barriers to integration. Exceptional Case Funding (ECF) has been available for family reunion cases. However the rates applicable under ECF are far too low for the work involved. The British Red Cross has found that many law firms are unwilling to take on these cases for the minimal fee of £234 for the entire case."