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New report by the House of Commons Library examines the UK’s refugee family reunion rules

Summary:

Useful overview published as MPs vote against Dubs amendment to the EU (Withdrawal Agreement) Bill

Date of Publication:
27 January 2020

New report by the House of Commons Library examines the UK’s refugee family reunion rules

27 January 2020
EIN

The House of Commons Library has published a useful new briefing paper looking at the UK's refugee family reunion rules.

ParliamentYou can download the briefing paper here or you can read it below.

The issue of refugee family reunion has received considerable attention recently. MPs last week voted against a Lords amendment to the EU (Withdrawal Agreement) Bill put forward by Labour peer Alf Dubs that would have guaranteed unaccompanied refugee children could continue to join relatives in the UK after Brexit.

In addition, as we reported on EIN earlier this month, Amnesty International UK, the Refugee Council and Save the Children published a report accusing the Government of pursuing a policy that prevents child refugees from being reunited with their families.

Following last week's Commons vote, Alf Dubs posted on Twitter: "It is bitterly disappointing that after a victory in the Lords the government have voted down my amendment in the Commons. What could be more humane than asking that unaccompanied child refugees stranded in Europe be able to join relatives in this country?"

The Guardian quoted Labour's Shadow Home Secretary Diane Abbott as saying the Government was "attempting to shirk its moral and legal obligation to child refugees and their families".

According to BBC News, ministers said they back the principle of the Dubs amendment but the Brexit bill was not the right vehicle for it.

In a factsheet published earlier this month, the Home Office defended its record and said: "There has been misleading reporting over the past week, claiming that the Government is turning its back on vulnerable refugees, in particular unaccompanied asylum seeking children. However, the UK Government has a strong and proud record of helping vulnerable children and this will not change."

The factsheet continued: "We remain absolutely committed to seeking a reciprocal agreement with the EU for the family reunion of unaccompanied asylum-seeking children, and we do not require the Withdrawal Agreement Bill to achieve this."

The Government said it was also absolutely committed to the family reunion of refugee families and added that its has reunited over 27,000 family members with refugees in the UK in the last five years.

Labour's shadow Brexit minister Thangam Debbonaire warned in the Commons last week, however, that the Government was not to be trusted: "As Lord Dubs said, it is partly the scattergun of justifications that leads one to be suspicious. He was asked by Ministers to trust them, and he very generously said that as individuals he did trust them but that he did not trust them as a Government—because their predecessor Government had form on this. They promised to take 3,000 children on the Dubs scheme, as originally committed to, but took fewer than 500 in the end.

"The Government have boasted, as the Secretary of State has just done, about the number of children given refuge in this country, but have ignored the fact that most could not and did not come by the safe or legal routes that currently exist, even when entitled to them under the current law. They were often trafficked or took dangerous journeys in order to reach their family members, because they felt they had no other choice. We are talking about reuniting families, but removing the already restrictive access to safe and legal routes does not decrease the risk of trafficking; it increases the risk."

Steve Barclay, Secretary of State for Exiting the European Union, told the Commons: "I can only say again, as I did in our previous debates, that the Government's policy is unchanged. Delivering on it will not require legislation. The Government have a proud record on supporting the most vulnerable children. The UK has granted protection to more than 41,000 children since the start of 2010. In 2018, the UK received ​more than 3,000 asylum applications from unaccompanied children, and the UK deals with 15% of all claims in the EU, making us the country with the third highest intake in Europe. Indeed, in the year ending September 2019 the intake rose to more than 3,500."

The House of Commons Library report on refugee family reunion is reproduced below:

_____________________________

HOUSE OF COMMONS
LIBRARY

BRIEFING PAPER
Number 07511, 23 January 2020

The UK's refugee family reunion rules: a "comprehensive framework"?

By Melanie Gower, Terry McGuinness

Inside:
1. Family reunion under UK Immigration Rules and policy
2. Family reunion under EU law
3. Topical issues
4. Recent external scrutiny

www.parliament.uk/commons-library | intranet.parliament.uk/commons-library | papers@parliament.uk | @commonslibrary

Cover page image copyright: Brother and Dad by @neotsn. Licenced under CC BY-NC-SA-2.0 / image cropped.

Contents
Summary
1. Family reunion under UK Immigration Rules and policy
1.1 Who do the Rules apply to?
Unaccompanied children acting as sponsor
1.2 Alternative options for ineligible sponsors/relatives
Exceptional cases: leave 'outside the rules'
Discretionary applications based on Article 8 ECHR
Refugee resettlement schemes
1.3 Recent application statistics
2. Family reunion under EU law
2.1 Dublin III Regulation
Differences between the Dublin III Regulation and the Immigration Rules
2.2 Statistics: Family reunion under Dublin Regulation
Improving the handling of Dublin transfer requests
2.3 Brexit implications
Replacing Dublin with a new agreement
Debate during passage of EU (Withdrawal Agreement) Bill 2019-20
3. Topical issues
3.1 NGO campaigning, etc
Applying the family reunion rules to a wider range of relatives
Allowing refugee children to sponsor applications
Fairness of Home Office decision making and access to legal advice
Legal aid
3.2 Private Members' Bills
4. Recent external scrutiny

Summary

The UK's Immigration Rules allow for refugees to be joined in the UK by immediate family members in certain circumstances. Provisions in EU law (the Dublin III Regulation) can also be used to reunite family members separated across the EU/EEA.

The Dublin Regulation gives some families a chance of reunion that they would not otherwise have, because it applies broader eligibility criteria than the Immigration Rules.

The Dublin Regulations will no longer apply after the Brexit 'transition period'. This has given extra impetus to pre-existing calls to widen the scope of the UK's rules.

UK Immigration Rules

The UK's rules cater for a refugee's 'pre-flight' partner and dependent children (under 18). They do not allow unaccompanied refugee children to sponsor applications from family members. Refugee family reunion visas are issued free of charge and are exempt from some of the eligibility criteria that usually apply to family visa applications.

Relationships that aren't covered by the refugee family reunion rules, such as dependent adult relatives, adopted children, and 'post-flight' family members, are subject to different visa rules. These have significant application fees and more restrictive eligibility criteria, such as adequate maintenance funds and knowledge of English requirements.

There is scope to grant refugee family members leave "outside the Immigration Rules" in exceptional scenarios. This might apply, for example, in order to facilitate the entry of a dependent child over 18, or an unaccompanied child with a close relative in the UK. But campaigners argue that these applications rarely succeed, and that applicants would have greater certainty and superior rights if their circumstances were covered by the Immigration Rules rather than policy guidance.

Legal aid is available for family reunion applications in Scotland and Northern Ireland. It was removed for cases in England and Wales in 2013, but in late October 2019 it was reinstated for applications involving unaccompanied children.

In response to criticisms that the rules are too tightly-drawn, successive recent Governments have maintained that the immigration rules and policy guidance already provide a "comprehensive framework" for family reunion. They have expressed concern that more generous rules, including allowing child refugees to sponsor applications, might encourage asylum seekers to come to the UK and put children at greater risk of trafficking.

The Dublin III Regulation and Brexit implications

There are concerns that separated families, including unaccompanied children, may lose routes to family reunion if the UK doesn't negotiate a similar post-Brexit agreement with the EU or broaden the scope of its own Immigration Rules.

The Government has confirmed that it intends to seek a family reunion agreement with the EU for separated children but has not made a similar commitment for adult cases.

Statistics

The number of family reunion applications made to the UK under the Immigration Rules or Dublin III Regulation has increased in recent years. In 2018, the UK accepted 1,028 transfers on family reunion grounds under the Dublin Regulations. 159 were children joining relatives in the UK.

1. Family reunion under UK Immigration Rules and policy

The 1951 Geneva Convention relating to the Status of Refugees does not provide a right to family reunion for refugees, although the Final Act of the Conference that adopted the 1951 Convention recommended that signatory states "take the necessary measures for the protection of the refugee's family", with particular reference to ensuring that family unity is maintained, and the protection of refugees who are minors. The UNHCR Handbook states that, as a minimum requirement, such measures should apply to a refugee's spouse and minor children. [1]

A January 2018 publication by the Refugee Council and Oxfam, Safe but not Settled, considered the impact of family reunion and enforced prolonged separation on resettled refugees' ability to integrate successfully into UK society. It found that in most of the cases where families had been reunited, integration had been quicker and easier as a result. However, most of the people in the sample of 44 cases had not (yet) been able to reunite with their loved ones. This difficulty was said to "dominate(s) their lives".

Box 1: Constituents in need of legal advice: useful sources

The following sources of general information may be useful sources for signposting constituents to:

• GOV.UK, 'Settlement: refugee or humanitarian protection/family reunion' – provides a general overview of how to apply

• Home Office, Asylum Instruction, Family Reunion (9 January 2020) – policy guidance used by Home Office caseworkers

• Free Movement Blog, 'Refugee family reunion: a user's guide', 11 January 2016 – a blog post with practical guidance on how to apply

As always, constituents seeking legal advice about a personal case should be advised to speak to an immigration lawyer. The Immigration Law Practitioners' Association publishes a list of specialist practitioners alongside information about the regulation of immigration advice, and the GOV.UK website page on 'Find a regulated immigration adviser' may also be helpful. The British Red Cross operates some international family tracing and family reunion services.

1.1 Who do the Rules apply to?

Adult refugees (i.e. people who have been granted Refugee status or Humanitarian Protection)paragraphs 352A-352FJ of Part 11 of the Immigration Rules . [2] may be joined in the UK by their immediate family members (i.e. partner and dependent children under 18) who formed part of their family unit before they fled to claim asylum, as per [3]

Successful applicants are given leave in line with the refugee sponsor (i.e. immigration permission for the same length of time and with the same conditions and entitlements). To obtain Refugee status in their own right (and the protections from removal that such status gives) they would need to successfully apply for asylum in the UK. [4]

There are various associated eligibility and evidential requirements. For example, partners must demonstrate that the relationship pre-dated the refugee's exile and is still subsisting, and that the two parties intend to live together as partners in the UK. Children must demonstrate that they are related to the refugee relative as claimed, are under 18, are unmarried and are not leading an independent life.

Refugee family reunion cases are exempt from some of the criteria that apply to other types of family visa application. For example, the refugee sponsor does not have to demonstrate that they will be able to adequately accommodate and maintain the family members without recourse to public funds, and the family members are not required to have any proficiency in English before coming to the UK. Also, refugee family reunion applications are free of charge (unlike most immigration application categories).

The Home Office's asylum policy guidance on Family Reunion contains further information about how applications should be assessed.

Unaccompanied children acting as sponsor

The refugee family reunion rules do not apply to the parents and siblings of a minor who has been granted Refugee status. There is no provision in the Immigration Rules for children who have been recognised as refugees to sponsor family members. Home Office guidance states that such applications should be referred for consideration of whether there are exceptional compassionate circumstances which would justify consideration 'outside the Immigration Rules' (discussed further below).

Box 2: What do other countries do?

EU Directive 2003/86/EC on the right to family reunification covers family members of people granted Refugee status, as well as family members of other categories of migrant. [5]

Chapter V of the Directive specifically concerns refugee family reunion. It specifies that family reunion can be confined to 'pre-flight' family members, and to refugees granted Refugee status under the 1951 Convention (whereas the UK's rules also apply to family of people granted asylum on other grounds).

Eligible family members are the spouse and minor children (including adopted children). Member States may also authorise family reunion for other family members if they are dependent on the refugee.

Article 10(3) of the Directive allows for unaccompanied refugee children to sponsor family reunion applications (unlike the UK).

The Directive requires Member States to exercise a degree of flexibility in terms of the evidence required to substantiate an application, and states that applications should not be refused solely because documentary evidence is lacking (Article 11).

Some NGOs have been critical of how the Directive is applied in some Member States, citing examples of how in practice, more favourable rules are not applied for refugee cases (contrary to the Preamble to the Directive). [6]

1.2 Alternative options for ineligible sponsors/relatives

As previously indicated, the refugee family reunion rules exclude certain categories of UK-based sponsor, and certain categories of relative.

People who do not have Refugee status or Humanitarian Protection cannot act as sponsors under the family reunion rules to bring family to the UK. This includes:

• Asylum seekers

• A person with Discretionary Leave, Indefinite Leave (unless with Refugee status or Humanitarian Protection) or Leave 'outside the Rules'

• A person who has naturalised as a British citizen following a previous grant of Refugee status or Humanitarian Protection

Certain relatives are ineligible for entry under the refugee family reunion rules, including:

• Family members of child refugees

• Dependent children over 18

• Other dependent relatives (e.g. sibling, parent, aunt, grandparent)

• 'De facto' adopted children

• 'Post-flight' family members

In these circumstances, the sponsor/applicant must look to the broader family migration provisions in the Immigration Rules to see if they might be eligible for entry to the UK. These are the same rules that apply to British citizens and people with Indefinite Leave to Remain.

It may also be possible to obtain permission to come to the UK as an exception to the rules, or on the basis of Article 8 rights, for example.

Immigration Rules for family members

The family migration rules are specified in Appendix FM and part 8 of the Immigration Rules. There are significant application fees and more onerous eligibility requirements for these applications compared to those made under the refugee family reunion rules.

For example, the partner visa requirements are set out in Appendix FM, They include that the UK sponsor satisfies a financial requirement equivalent to a minimum income of at least £18,600 per annum, and that the partner has a basic level of competence in English. [7] The application fee (as at January 2020) is £1,523 plus £1,000 for the Immigration Health Surcharge.

Other adult dependent relatives (e.g. parents, siblings, children, grandparents) may be eligible for entry to the UK under Appendix FM if "as a result of age, illness or disability [they] require long-term personal care to perform tasks" and are "unable, even with the practical and financial help of the sponsor, to obtain the required level of care in the country where they are living, because … it is not available … or … not affordable." The application fee is £3520 (January 2020).

Separated children, including de facto adopted children, are eligible to join relatives who have Refugee status or Humanitarian Protection in the UK in accordance with paragraphs 319X – 319XB. The requirements include that "there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child's care; the applicant is not leading an independent life; and the applicant will be accommodated and maintained adequately by the relative without recourse to public funds". The application costs £388 (January 2020).

Exceptional cases: leave 'outside the rules'

Ministers have countered arguments that the Immigration Rules are too tightly-drawn by highlighting the possibility of granting immigration permission "outside the Immigration Rules" in exceptional or compassionate cases. Answering a PQ in July 2019, the then Minister for Immigration, Caroline Nokes, clarified:

Where a refugee family reunion application does not meet the requirements of the Immigration Rules, caseworkers must consider whether there are any exceptional circumstances or compassionate factors which may justify a grant of leave outside the Immigration Rules. We revised our guidance in 2016 to include more detail on the types of case that may benefit from a visa outside the Rules, this includes young adult sons or daughters who are dependent on family here and living in dangerous situations.

Specifically, exceptional circumstances or compassionate factors apply where a refusal would either breach the right to respect for family life under Article 8 of the ECHR or result in unjustifiably harsh consequences for the applicant or their family. It is for the applicant to demonstrate what the exceptional circumstances or compassionate factors are in their case. Each case must be decided on its individual merits. [8]

There is limited available data on the use of discretion in family reunion cases. Campaigners argue that in practice, most applications based on the guidance are refused (although some refusal decisions get overturned on appeal). [9]

The Home Office anticipates that few applications from parents and siblings of a child with refugee status would fall within the scope of the policy, as the guidance itself states:

Each case must be considered on its individual merits and include consideration of the best interests of the child in the UK. As the Immigration Rules are specifically designed to meet our obligations under the European Convention on Human Rights (ECHR) in respect of family or private life, it is not expected there will be significant numbers granted outside the rules. However, it is important that evidence relating to exceptional circumstances is carefully considered on its individual merits. [10]

It goes on to give some general guidance about considering exceptional circumstances or compassionate factors:

There may be exceptional circumstances raised in the application which make refusal of entry clearance a breach of ECHR Article 8 (the right to respect for family life) because refusal would result in unjustifiably harsh consequences for the applicant or their family. Compassionate factors are, broadly speaking, exceptional circumstances, which might mean that a refusal of leave to remain would result in unjustifiably harsh consequences for the applicant or their family, but not constitute a breach of Article 8.

It is for the applicant to demonstrate as part of their application what the exceptional circumstances or compassionate factors are in their case. Each case must be decided on its individual merits. Entry clearance or a grant of leave outside the Immigration Rules is likely to be appropriate only rarely and consideration should be given to interviewing both the applicant and sponsor where further information is needed to make an informed decision. [11]

And some examples of cases that may justify a grant of leave outside the Rules:

• an applicant who cannot qualify to join parents under the rules because they are over 18 but all the following apply: ─ their immediate family, including siblings under 18 qualify for family reunion and intend to travel, or have already travelled, to the UK

─ they would be left alone in a conflict zone or dangerous situation

─ they are dependent on immediate family in the country of origin and are not leading an independent life

─ there are no other relatives to turn to and would therefore have no means of support and would likely become destitute on their own

• where an applicant is an unmarried or same-sex partner and they meet all the requirements of paragraph 352AA with the exception that the sponsor was granted refugee status or humanitarian protection status before 9 October 2006

• where an applicant is an unmarried or same-sex partner and they meet all the requirements of paragraph 352AA except the requirement to live together and the caseworker is satisfied that they have evidenced that this would have put them in danger. [12]

Calls to incorporate exceptional cases guidance into the Immigration Rules

NGOs have argued that applicants would have greater certainty if the Immigration Rules reflected the guidance on exceptional cases. People granted leave under the Rules also usually have more beneficial rights than those granted outside the rules (e.g. leave in line with the refugee family member, rather than limited leave subject to additional restrictions). [13]

Article 8 ECHR

Applicants who cannot satisfy the Immigration Rules requirements for refugee family reunion or entry as a dependent relative may be able to apply to join family members in the UK, based on the UK's commitments under international law. The Upper Tribunal has allowed an appeal brought on Article 8 grounds by the mother and sibling of a child granted refugee status in the UK. [14]

In particular, Article 8 of the European Convention on Human Rights provides a qualified right to respect for family and private life. This right can be interfered with for the purpose of maintaining effective immigration controls, however the interference must be proportionate. A relevant consideration in cases involving refugees is that they cannot easily move to join their family members in their country of origin (owing to the past persecution they experienced there), and may be unable to obtain a visa to join them in a different country.

Furthermore, Article 3 of the 1989 UN Convention on the Rights of the Child requires that the best interests of a child be the primary consideration in all actions concerning children. Section 55 of the Borders, Citizenship and Immigration Act 2009 requires the Home Secretary to safeguard and promote the welfare of children in the UK. Although the statutory duty does not apply to children outside the UK,

Home Office policy guidance states that staff working overseas "must adhere to the spirit of the duty". [15]

Immigration Judges in the Upper Tribunal, amongst others, have criticised the Home Office's approach to Article 8 and section 55 considerations in some cases. [16]

Refugee resettlement schemes

Pre-flight family members of refugees who came to the UK under one of its resettlement schemes are eligible to join them in the UK through the family reunion Immigration Rules. Family reunion is also a potential grounds for eligibility for resettlement under these schemes (the 'Mandate' and 'Gateway' schemes, Vulnerable Person Resettlement scheme, "children at risk" scheme , and 'Dubs scheme' as per section 67 of the Immigration Act 2016).

A new global refugee resettlement scheme, which will consolidate some of the above schemes, is due to be launched in 2020.

1.3 Recent application statistics

Refugee family reunion applications made under the Immigration Rules are not separately recorded in the quarterly immigration statistics but comprise the majority of the applications in the 'Family: Other' category.

The table below shows the number of applications and decisions for visas in this category in the year ending September 2019, with comparisons to previous years ending September.

The year ending September 2019 saw the highest number of applications for 'family: other' entry clearance visas in the last eight years. The number of decisions on visas in this category has increased in recent years, doubling from 4,822 in the year ending September 2012 to 9,634 in the year ending September 2019.

In the year ending September 2019, 71% of applications in this visa category were granted. The annual refusal rate has ranged from 24% to 37% in the years since 2012.

ENTRY CLEARANCE VISAS AND RESOLUTIONS IN THE 'FAMILY: OTHER'
Years ending September

 

Applications

Resolved

Granted

Refused

Withdrawn or lapsed

Number

%

Number

%

2012

4,591

4,822

3,519

73%

1,151

24%

152

2013

6,221

6,278

4,192

67%

1,977

31%

109

2014

5,576

6,528

4,643

71%

1,764

27%

121

2015

7,622

7,433

4,504

61%

2,786

37%

143

2016

9,155

9,936

6,179

62%

3,697

37%

60

2017

7,344

7,704

5,136

67%

2,517

33%

51

2018

7,573

8,238

5,967

72%

2,229

27%

42

2019

9,634

9,634

6,857

71%

2,730

28%

47

Source: Home Office, Immigration statistics, year ending September 2019, data tables Vis_D01 and Vis_D02; Immigration Statistics: April to June 2017, Table vi_01_q

There are separate statistics on family reunion visas granted by nationality. These are a subset of the 'Family: other' visa category.

The table overleaf shows the top ten countries of nationality for family reunion visas granted in the year ending September 2019, with comparisons to the previous year.

Just over a fifth (22%) of refugee family reunion visas granted in the year ending September 2019 were to Eritrean nationals. This was a smaller percentage than in the year ending September 2018 when over a quarter (26%) of visas granted in this category were to Eritrean nationals.

The top five countries of nationality accounted for 67% of family reunion visas granted in the year ending September 2019, while the top ten countries of nationality accounted for 81% of visas granted (bearing in mind that one of the nationality categories is 'stateless'). The percentages were similar in the previous year.

Overall the number of refugee family reunion visas granted rose by 160 between these two periods, which was a rise of around 3%.

ENTRY CLEARANCE VISAS GRANTED BY TOP 10 COUNTRIES OF NATIONALITY: REFUGEE FAMILY REUNION
Years ending September 2019 and September 2018

 

Rank

Number

Change on previous year

Row Labels

YE Sep 2019

YE Sep 2018

YE Sep 2019

YE Sep 2018

Number

%

Eritrea

1

1

1,306

1,512

-206

-14%

Iran

2

3

1,053

768

285

37%

Sudan

3

2

707

904

-197

-22%

Syria

4

4

683

575

108

19%

Afghanistan

5

7

267

200

67

34%

Sri Lanka

6

8

231

181

50

28%

Pakistan

7

9

205

174

31

18%

Ethiopia

8

5

183

263

-80

-30%

Somalia

9

6

159

232

-73

-31%

Stateless

10

10

119

149

-30

-20%

Total

.

.

6,035

5,875

160

3%

Source: Home Office, Immigration statistics, year ending September 2019, data table Fam_D01

2. Family reunion under EU law

2.1 Dublin III Regulation

Separate to the UK's Immigration Rules, EU law enables people who have already entered Europe as asylum seekers and have family living in the UK to be transferred to the UK for consideration of their case. The Dublin III Regulation ('the Dublin Regulation') applies to all EU/EEA Member States.

Being transferred under the Dublin Regulation is not directly comparable to a grant of leave to enter/remain under the UK Immigration Rules in various respects.

The primary objective of the Dublin Regulation is not family reunion. Rather, its purpose is to specify a hierarchy for determining which Member State should be responsible for processing an asylum clam made by someone who has entered the EU. However, the Regulation does prioritise respect for family reunion above certain other considerations, such as which EU state the person initially entered.

Formal transfer requests are initiated by the state authorities rather than by the individual applicant/sponsoring family member. Furthermore, the Dublin Regulation only determines which country a person can stay in whilst they claim asylum. If asylum is refused, the applicant would be expected to return to their country of origin (or make a new application in a different immigration category).

Differences between the Dublin III Regulation and the Immigration Rules

Because it applies different eligibility criteria for sponsors and relatives compared to the UK Immigration Rules, the Dublin III Regulation gives some refugee families a route to reunion in the UK that they would not otherwise have. For example:

Unaccompanied children can join a 'family member' (parent/responsible adult), sibling or other relative (adult aunt, uncle, grandparent) who is 'legally present' in a host state (Article 8). 'Legally present' includes those who are seeking asylum, have a valid visa, immigration status, or who have gained citizenship of the host state.

Refugees' pre- or post-flight 'family members' (spouse/partner or minor children) are eligible to join them in the host state (Article 9).

Parents can join children under 18 who have been granted Refugee status (Article 9).

Pre-flight family members of asylum seekers waiting for an initial decision can join them in the host state (Article 10).

Some of the family reunion scenarios provided for by the Dublin Regulation are similar to those allowed for in the UK Immigration Rules but more accessible in practice, for example due to:

• absence of application fee

• lower evidential requirements and qualifying criteria.

Furthermore, Article 17 of the Regulation enables participating States to exercise discretion in order to reunite individuals who are part of an extended family group "based in particular on family or cultural considerations".

2.2 Statistics: Family reunion under Dublin Regulation

There has been a significant increase in the number of 'Dublin' transfers to the UK on family reunion grounds since 2016, including minors transferred under Article 8 of the regulation. These increases have contributed to the UK becoming a net recipient of migrants under the Dublin III Regulation in recent years.

TRANSFERS TO THE UK UNDER THE DUBLIN REGULATION

Year

Transfers to UK (total)

In any family reunion category (Art. 8, 9, 10,11)

Child joining relative in UK (Article 8)

2014

69

8

6

2015

131

31

24

2016

558

330

175

2017

461

295

92

2018

1,215

1,028

159

Source: 2014 data from Eurostat, Incoming Dublin transfers by submitting country (PARTNER), legal provision and duration of entry (last updated 17 September 2019); 2015-18 data from Home Office, Immigration statistics quarterly, year ending September 2019, table Dub_D01

Improving the handling of Dublin transfer requests

Criticisms have been made that the Dublin protections are difficult to access in practice, and that the process for transferring cases is slow and bureaucratic.

Chapter VI of the Regulation details the process and timetable for initiating and implementing transfers of cases between Member States. The end to end process between lodging a "take charge request" and implementing the transfer (if agreed to) can take eleven months. States can request urgent responses in certain scenarios.

The UK Government maintains that a person must first claim asylum in another Member State in order to initiate a transfer to the UK. This position was upheld by the Court of Appeal in a case involving four young Syrians who were living in the 'jungle' camp in Calais and seeking to reunite with siblings in the UK who had already been granted Refugee status. [17]

Responding to criticisms about the length of time taken to transfer cases to the UK, Brandon Lewis, Minister of State for Security, referred to the increase in number of take charge requests ('TCR') received. He also commented:

The processes involved to make a request vary in all Member States depending on the circumstances of each person who may be eligible to transfer under the Dublin provision, and will also depend on the domestic laws and processes within that govern that country in respect of supporting asylum seekers and unaccompanied children. Upon receiving a TCR it is important that Member States act in the best interest of the child. We work closely with the Department for Education (DfE) and with local authorities to develop and improve the processes for consideration of a TCR for an unaccompanied child, with a view to achieving the efficient and effective discharge of our obligations under Dublin III, ensuring there is proper regard to the best interests of each child. To make these necessary checks takes time to enact working with appropriate partners. It is only right that sufficient time is dedicated to these important steps. [18]

When children are transferred under the Dublin provisions to join a relative in the UK, local authorities must assess the relatives' suitability to care for the child. If deemed unsuitable, or the placement subsequently breaks down, the child is put under the care of the local authority of the placement. [19]

A series of measures introduced by the UK and international partners over recent years have aimed to improve the identification of cases eligible for a transfer to the UK and reduce the length of time they take to process. For example:

• Agreeing, in the joint UK-France declaration of August 2015 , to establish a permanent contact group to improve operational effectiveness in implementing Dublin transfers from France, and running communication campaigns in northern France about the right to claim asylum and the family reunion process.

• Announcing, in January 2016 , a new £10 million fund to support the needs of vulnerable migrant and refugee children in Europe, which will be partly used to support the Dublin provisions by assisting to identify children who need to be reunited with family members.

• Seconding Home Office officials to France, Italy and Greece to improve the handling of Dublin transfer cases.

• Relocating 769 unaccompanied children from a migrant camp in Calais to the UK in support of the camp clearance (549 to reunite with families in the UK and 220 under section 67 of the Immigration Act 2016). [20]

• Agreeing, as part of the UK-France Sandhurst Treaty of January 2018, shorter timescales for handling Dublin transfer requests (with particular reference to unaccompanied minors), and a £3.6 million fund to support cases eligible for transfer, including provision of training, family tracing services and information campaigns. [21]

2.3 Brexit implications

The Dublin Regulations will no longer apply to the UK after it leaves the EU. Assuming that the Withdrawal Agreement between the UK and EU is approved, this would mean at the end of the transition/implementation period (currently, 31 December 2020). [22]

Replacing Dublin with a new agreement

The Government does not intend to seek 'third party' access to the Dublin system at the end of the transition period. Instead, it wants to secure a new "reciprocal returns agreement" with the EU to facilitate the return of non-European asylum seekers and irregular migrants to the country they entered the UK/EU from. The Government does not intend that this new agreement would merely replicate the provisions of the Dublin Regulations. [23]

Some stakeholders are concerned that, unless comparable replacement arrangements are put into in place, ending the UK's participation in the Dublin Regulation will remove a safe and legal route for family reunion for asylum seekers in Europe with family members in the UK.

The Government has only committed to seeking a replacement for the Dublin family reunion provisions to enable unaccompanied children in Europe to join relatives in the UK (and vice versa). [24] Refugee advocates want a more comprehensive replacement which would also apply to adults.

An October 2019 report of an inquiry by the Lords EU (Home Affairs) Committee found that it is "imperative" that leaving the EU should not restrict refugee family reunion rights. It continued:

(…) All routes to family reunion available under the Dublin System should be maintained in the new legal framework for UK-EU asylum cooperation, together with robust procedural safeguards to minimise delays in reuniting separated refugee families. Neither the UK nor the EU should contemplate vulnerable people who have already experienced trauma facing additional suffering as a result of Brexit. Consideration should therefore be given to establishing interim arrangements for refugee family reunion, even if other aspects of future UKEU asylum cooperation prove more difficult or time consuming to negotiate. [25]

Debate during passage of EU (Withdrawal Agreement) Bill 2019-20

Section 17 of the European Union (Withdrawal) Act 2018 obliged the Government to seek to negotiate a post-Brexit agreement with the EU to facilitate family reunion for unaccompanied children in the EU/UK. It was a non-government amendment added at Lords Report stage. [26]

Clause 37 of the European Union (Withdrawal Agreement) Bill 2019-20 amends section 17 of the 2018 Act. It replaces the requirement to negotiate with an obligation on a Government Minister to make a single policy statement to Parliament "in relation to any future arrangements" between the UK and EU about these children. The policy statement would have to be laid within two months of the Bill receiving Royal Assent.

The Government has rejected criticisms that this change dilutes commitments it had previously made to preserving family reunion options for separated children. It maintains that its position has not changed:

(…) The Government's policy has not changed and protecting vulnerable children will remain our priority after we leave the EU. The new Clause 37 in the Withdrawal Agreement Bill reaffirms this commitment while clarifying the role of Parliament and Government in negotiations. (…). [27]

Speaking during the Bill's second reading stage in the Lords, the DExEU Minister Lord Callanan argued that removing the statutory obligation to negotiate was "entirely appropriate", since discussions with the EU had already been initiated. [28]

The Home Secretary, Priti Patel, confirmed in a letter to the Home Affairs Committee on 30 October 2019 that she had written to the European Commission setting out the Government's intention to negotiate "as soon as possible (…) a reciprocal agreement with the EU to allow unaccompanied asylum-seeking children in the EU to join relatives – parents, siblings, aunts, uncles and grandparents – lawfully resident or awaiting a decision on their asylum claim in the UK". The letter continued:

Whilst I am confident of a positive response by the Commission, as continued cooperation on asylum matters is in our respective interests, the UK cannot compel the EU to negotiate with us on any given issue, nor compel the EU to do so within a specific timeframe, so it is not possible to put a timeframe on when certain elements of our future cooperation with the EU will be negotiated.

An amendment to leave out clause 37 was approved at Lords Report stage. [29] But it was overturned when the Bill returned to the Commons, and the Lords did not subsequently seek to reinstate it. [30]

3. Topical issues

3.1 NGO campaigning, etc.

Many stakeholders in the asylum/refugee sector have formed the 'Families Together' campaign coalition. They are calling on the government to expand the scope of the family reunion rules, including by allowing refugee children to sponsor applications, and reinstate legal aid for these applications (in England and Wales).

Successive recent governments have maintained that the UK has a "comprehensive framework" of rules and policy which provides a safe and legal route for refugee family reunion.

In late October 2019 legal aid was reinstated in England and Wales for unaccompanied children's immigration cases (including family reunion), partly in response to campaigning and legal action. [31]

Applying the family reunion rules to a wider range of relatives

Campaigners argue that the refugee family reunion rules should be expanded to cover all relationships where the applicants are dependent on the sponsor. A representative from the NGO Safe Passage gave an example of why this is considered necessary, in evidence to the Lords EU Committee:

"You might feel, 'I can understand that it's in the best interests of the child if we're reuniting them with a parent, for example, but maybe it's not so important if it's an aunt', but often these people have come on very perilous journeys. We have certainly had to deal with people who have lost family members on the way; they did not start out as an unaccompanied minor but lost family members in the Mediterranean, and their last living relative might be an aunt or uncle in the UK. That shows you how important it is to have that family link rather than leaving a child unaccompanied and without parents in Greece." [32]

Ministers have raised concerns that widening the eligibility criteria might act as a "pull factor" for further asylum claims. [33] David Simmonds MP, former Deputy Chair of Hillingdon Borough Council, made a similar point during his maiden speech in Parliament. Referring to his experience of visiting migrant camps in Calais, Mr Simmonds argued that the Dublin provisions:

have long been seen … as an exploitable route for traffickers to create the opportunity of family reunion and encourage people to consign vulnerable people, sometimes children, to the backs of lorries and to dinghies across the channel in an attempt to open a family reunion route. [34]

Allowing refugee children to sponsor applications

The Government is being urged to change the Immigration Rules to allow child refugees to sponsor family members under the refugee family reunion rules, just as adult refugees can.

Research published by the Refugee Council, Save the Children and Amnesty International in January 2020, Without my family, considered the impact of current policy on unaccompanied refugee children living in the UK. It concluded that the current policy "unfairly compromised children's lives in the UK", was at odds with national and international obligations, and was not supported by evidence: [35]

The UK has the most restrictive policies on child family reunion compared to EU countries and these policies are at odds with the UK's legal obligations under national, international and regional human rights law as well as international humanitarian and refugee law. The failure to provide family reunion for children to be reunited with their adult family members does not include full consideration of a child's best interests. The best interests of a child require consideration of a durable solution, which includes reunion with parents and siblings. … child refugees in the UK are condemned to live apart from their family, often growing up instead in the UK care system. This puts at risk their safety and wellbeing in the UK.

Being reunited with close family is often critical to a refugee's chances of integration and recovery. Being separated from immediate family is clearly not generally in the child's best interests and is potentially damaging to their welfare and development. [36]

A 2016 inquiry by the Home Affairs Committee described the distinction between the sponsoring rights of child and adult refugees as "perverse". [37] The Government's response countered that letting children sponsor other family members would risk creating a perverse incentive for children to make dangerous journeys to the UK, and that such cases are sufficiently covered by the guidance on exceptional circumstances. [38]

Fairness of Home Office decision making and access to legal advice

Campaigners have argued that family reunion applications (whether under the Rules or as exceptional circumstances) can be far from straightforward, and that applicants need access to quality legal advice, (and legal aid).

The Independent Chief Inspector of Borders and Immigration inspected the Home Office's handling of family reunion applications in 2016. This was prompted by stakeholders' concerns about the Home Office's approach to assessing applications. The report found that "Overall, … the Home Office was too ready to refuse applications where it judged that the applicant had failed to provide sufficient evidence to satisfy the eligibility criteria, when deferring a decision to allow the applicant to produce the 'missing' evidence might be the fairer and more efficient option." [39] A follow-up inspection took place in 2018 (discussed in section 4 of this briefing).

Brandon Lewis MP, Home Office Minister of State, set out the Department's approach (to Dublin and Immigration Rules applications) in a letter to the Lords EU Committee in autumn 2019:

There is an established process under the Dublin Regulation's Implementing Regulation whereby the requesting State can ask for a reconsideration of a decision to reject a request and where additional evidence can be provided. Where we reject a [take charge request], the Home Office provides the requesting State with a full explanation of the reasons in our rejection letter. The Home Office also recently revised its guidance on the refugee family reunion Immigration Rules, to streamline the process and make it clearer for applicants and sponsors to understand what is expected of them, including the types of documentary evidence that can be provided to support an application. The revised guidance recognises the challenges applicants face in obtaining documents to support their application. (…) Every family reunion application is carefully considered with sensitivity and compassion on its individual merits based on the evidence provided by the applicant and their sponsor. [40]

Legal aid

Legal aid is a devolved matter. Legal aid is available for family reunion applications in Scotland and Northern Ireland.

Family reunion applications were removed from the scope of legal aid in England and Wales with effect from April 2013, by the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The then Government took the view that such applications were straightforward and constituted an "immigration" rather than "asylum" matter (asylum matters remain in scope). Taking these cases outside the scope of civil legal aid meant that, as per section 10 of LASPO, legal aid could only be granted for cases deemed to be "exceptional".

Reintroducing legal aid for cases involving separated migrant children

With effect from 25 October 2019, legal aid has been reintroduced in England and Wales for immigration cases involving unaccompanied and separated migrant children. [41] This includes applications for entry clearance, leave to enter or remain made by the child's family members or extended family members, whether within or outside of the Immigration Rules.

This decision was announced in July 2018.Children's Society, with support from Islington Law Centre and the Migrant and Refugee Children's Law Unit (MiCLU), had initiated judicial review proceedings against the Government. [42] It followed consultation with stakeholders and related legal action. The

After a considerable delay, regulations took effect on 25 October 2019.

3.2 Private Members' Bills

In recent years there have been attempts to compel the Government to broaden the scope of the UK's family reunion rules through Private Members' Bills.

Most recently, Baroness Hamwee's Refugees (Family Reunion) [HL] Bill 2019-20 had its first reading in the Lords on 9 January 2020.

Baroness Hamwee had initiated a similar Bill in the Lords in the 2017-19 session, as did Angus MacNeil in the Commons:

• Angus Brendan MacNeil's Refugee (Family Reunion) (No.2) Bill 2017-19

• Baroness Hamwee's Refugee (Family Reunion) [HL] Bill

Both Bills sought to widen the scope for eligibility for refugee family reunion, including to allow separated children to sponsor family members, and to bring such applications within the scope of legal aid.

The Bills attracted considerable cross-party support. However both stalled due to a lack of Parliamentary time.

A letter urging action on Angus MacNeil's Bill, dated 15 March 2019, was sent to the then Home Secretary and signed by 66 MPs.

The then Government's position on the Bills was that the Immigration Rules and policy guidance already provide a "comprehensive framework" for refugee family reunion. It maintained that primary legislation was not necessary, arguing that instead the focus should be on developing existing policy and processes in to ensure it is effective implemented. [43]

4. Recent external scrutiny

Chief Inspector of Borders and Immigration

• An inspection of family reunion applications January to May 2016, September 2016 and Government response

The Chief Inspector found that the Home Office was too ready to refuse applications, and that deferring a decision to allow applicants to provide the necessary evidence might have been a fairer and more efficient approach. He made ten recommendations which were all accepted by the Home Office. They were intended to help the Home Office "to reassure applicants, stakeholders and others that it recognises the particular challenges surrounding Family Reunion applicants, and that it manages applications not just efficiently and effectively, but thoughtfully and with compassion."

• A re-inspection of the family reunion process, focusing on applications received at the Amman Entry Clearance Decision Making Centre November 2017 – April 2018, September 2018 and Government response

A substantive follow-up report was published in 2018. The Independent Chief Inspector classified eight of the ten recommendations in the 2016 report as still outstanding, deeming that "the pace at which the Home Office is moving is far too slow given the profound impact on the lives of families seeking to be reunited".

Lords EU Committee (Home Affairs Sub-Committee)

• Brexit: refugee protection and asylum policy, HL Paper 428, 11 October 2019

The Committee gave detailed consideration of the implications of Brexit for the UK's future relations with the EU on refugee and asylum policy, including securing continued participation or a replacement for the Dublin III Regulations, and broader issues relating to the functioning of the asylum system and opportunities for reform.

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[1] UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection, reissued February 2019, paras 181-188

[2] This includes refugees resettled under the Gateway, Mandate or Syrian Vulnerable Persons resettlement schemes.

[3] HC 395 of 1993-4 as amended

[4] [2019] EWCA Civ 1670

[5] The UK was not bound by the Directive as an EU Member State due to exercising its 'opt-out' rights (as Denmark and Ireland also did).

[6] ECRE/Red Cross EU Office, Disrupted Flight: the realities of separated refugee families in the EU, 2014

[7] The financial requirement is subject to exceptions for people in receipt of certain welfare benefits.

[8] Written Question 270742, answered on 3 July 2019

[9] Refugee Council et al, Without my family, January 2020, p.22

[10] Home Office, Family reunion: for refugees and those with humanitarian protection, v4.0, 9 January 2020, p.19

[11] Home Office, Family reunion: for refugees and those with humanitarian protection, v4.0, 9 January 2020, p.20

[12] Home Office, Family reunion: for refugees and those with humanitarian protection, v4.0, 9 January 2020, p.20

[13] Refugee Council and others, Lords Briefing Refugee (Family Reunion) Bill – second reading, 15 December 2017

[14] AT and another (Article 8 ECHR – Child Refugee – Family Reunification: Eritrea) [2016] UKUT 227 (IAC)

[15] Home Office/Department for Children and Families, Every child matters, November 2009

[16] See, for example, Refugee Council, Save the Children, Amnesty International, Without my family, January 2020, p.22-23

[17] Secretary of State for the Home Department v ZAT & Others [2016] EWCA Civ 810

[18] Lords EU Committee (Home Affairs Sub-Committee), Brexit: refugee protection and asylum policy, HL Paper 428, 11 October 2019, Appendix 7

[19] Local Government Association, Briefing, Backbench Business Committee debate on refugees and unaccompanied asylum seeking children, 23 February 2017

[20] PQ20116, answered on 19 December 2018

[21] PQ229183, answered on 11 March 2019; Treaty between the Government of Great Britain and Northern Ireland and the Government of the French Republic concerning the reinforcement of cooperation for the coordinated management of their shared border

[22] Leaving in a 'no-deal' scenario would mean that the Dublin III Regulations would cease to apply after exit day. Transitional arrangements are in place to allow for the resolution of outstanding transfer requests initiated by the state authorities before exit day: Immigration, Nationality and Asylum (EU Exit) Regulations 2019 2019/745, regs 54-55, Schedule 1; Schedule 2 Part 3

[23] Lords EU Committee (Home Affairs Sub-Committee), Brexit: refugee protection and asylum policy, HL Paper 428, 11 October 2019, Appendix 7

[24] PQ 29067 [on Asylum], answered on 7 October 2019

[25] Lords EU Committee (Home Affairs Sub-Committee), Brexit: refugee protection and asylum policy, HL Paper 428, 11 October 2019

[26] Amendment 59, agreed on division by 205 to 181.

[27] PQ 3310 [Immigration: Northern Ireland], answered on 20 January 2020

[28] HL Deb 13 January 2020 c456

[29] Division 1: HL Deb 21 January 2020 c1053

[30] Division 23: HC Deb 22 January 2020 c347

[31] Legal aid is available for family reunion applications in Scotland.

[32] Lords EU Committee, Brexit: refugee protection and asylum policy, HL Paper 428, 11 October 2019, para 133

[33] PQ 268562 [on Refugees], answered on 2 July 2019; HC Deb 1 Dec 2015 c228

[34] HC Deb 9 January 2020 c685

[35] Refugee Council, Save the Children, Amnesty International, Without my family, January 2020

[36] Refugee Council, Save the Children, Amnesty International, Without my family, January 2020, p. 26

[37] Home Affairs Committee, The work of the Immigration Directorates (Q1 2016), 27 July 2016, HC 151 2016-17, para 41

[38] Home Affairs Committee, The work of the Immigration Directorates (Q1 2016): Government response, 26 October 2017

[39] Independent Chief Inspector of Borders and Immigration, An inspection of family reunion applications January to May 2016, September 2016, p.2

[40] Lords EU Committee, Brexit: refugee protection and asylum policy, HL Paper 428, 11 October 2019, Appendix 7

[41] The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Legal Aid for Separated Children) (Miscellaneous Amendments) Order 2019, SI 2019/1396

[42] HCWS853, 12 July 2018

[43] HL Deb 15 December 2017 c1786-7