Refugee Family Reunion Rules

Stuart C McDonald Excerpts

Thursday 9th June 2016 Westminster Hall

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

It is indeed a pleasure to serve under your chairmanship, Mr Bone. I congratulate the right hon. Member for Orkney and Shetland (Mr Carmichael) on securing this debate and on his excellent speech. I also congratulate him on his excellent article, which I read this morning on PoliticsHome and which I would commend to other Members of the House. It has been invaluable in preparing for this afternoon’s debate.

Few would challenge the reasons why protecting the family unit is a fundamental principle of international law, and international refugee law in particular. As the United Nations declaration of human rights states:

“The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.”

Fleeing persecution should never require a refugee to have to give up that unit and have to choose between safety and family. There is a second fundamental reason for protecting the family unit and reuniting families, which is that family reunion is also about saving and protecting lives, as the right hon. Gentleman argued, because many of those applying to join family members here will themselves be in grave danger. That has never been as true as at present.

Family reunion is about providing safe legal routes to a place of protection. A failure to provide such routes will push many to turn to people smugglers and dangerous routes in an attempt to be reunited with their loved ones here in the UK. I pay tribute to the many organisations that work so hard to highlight the issues. As the right hon. Gentleman mentioned, the British Red Cross has been running a campaign called Torn Apart, which has perfectly captured the reasons why family reunion is so important. The powerful campaign video featuring Muhammed and Amal puts human faces on the numbers and arguments. A UNICEF campaign for reuniting unaccompanied children in Europe with families in the UK has attracted more than 100,000 signatures to a petition. As ever, the Refugee Council has been a persistent advocate of the cause.

The right hon. Gentleman highlighted concerns about the scope of the UK’s family reunion rules and problems with how they function in practice, even for those who qualify. As to the scope, he set out examples in which there was a lack of compassion or fairness, including the very restricted provision for children over the age of 18. Similar arguments are relevant to parents, siblings and other relatives. It is only fair to acknowledge that there will always be different views as to precisely where lines should be drawn, but I think most MPs and most members of the public would agree that currently the lines are drawn too restrictively.

Nowhere is that more apparent that in the case of adult children. How can we justify a policy by which an 18-year-old woman who was living as a dependent child with her parents and younger siblings in Syria cannot join them in the UK and must instead be left behind, possibly alone, in a refugee camp in Jordan, Lebanon or Turkey? Returning to the principles behind the rules, it is very hard to defend in terms of the impingement on her right to family life and the family life of her parents and children, it is absolutely indefensible in terms of her safety, and it creates a situation in which we can easily imagine that resorting to people smugglers and dangerous journeys would be a significant temptation.

Similar arguments could be made in respect of other relatives too. It is particularly true of child refugees. The UK and Denmark are alone in the EU in not allowing parents to apply to be reunited with them. The Government’s justification is child safeguarding, but we do not know what the evidence for that is. In fact, in the recent legal case of AT, the President of the Upper Tribunal concluded that the evidence suggested, contrary to the Government’s position, that allowing reunification would promote, rather than undermine, public interest in safeguarding of children. Another example is the exclusion of post-flight family. Again, that is a case where the rules appear to run contrary to the principles behind family reunion and protecting family life.

I expect the Minister will highlight the fact that provision is made for adult children and other dependent relatives to join their refugee families in

“the most exceptional compassionate circumstances”.

However, I do not think that is good enough—for a number of reasons. First, it just does not work. From my dim and distant past as an immigration solicitor, I can remember how incredibly difficult it was to have a client meet the threshold of “most exceptional compassionate circumstances”. From the briefings that we have received, that still seems to be the case. Secondly, that test is particularly inappropriate just now. To be living alone, far removed from the family unit that they have previously lived with and that they remain dependent on, is far from an exceptional circumstance for people in the current migration and refugee crisis. If the Minister cannot be persuaded to make a permanent change to the rules, surely he will consider a change to last for the duration of the current crisis. There are other problems with the rules, including the fact that they place financial tests on the refugee family to show they can support their relative without recourse to public funds.

Instead of hearing the Minister highlight the exception that would allow a few dependent 18-year-old children to join Syrian refugee families in the UK—families that they have always lived with—we want to hear him explain why on earth that is an exception in the first place. Why is it not the mainstream principle to allow family reunion in such circumstances? The wording of the exception simply highlights a far better place for lines to be drawn, if lines have to be drawn at all. Dependency and having been part of the household should be enough in itself. We should take out the financial requirements and the near-impossible task of showing

“the most compelling compassionate circumstances”.

As the right hon. Member for Orkney and Shetland asked, what does that phrase even mean? Does it incorporate the example I have given of an 18-year-old girl alone in a refugee camp in Lebanon?

The right hon. Gentleman also pointed out that when we consider the exercise of discretion outside the rules, it is noticeable how rare an event that is. There have been about 65 cases outside the rules in the last three years, against a background of 20,000 family reunion applications. Such cases are rarer now than they were in 2011. I ask the Minister, as the right hon. Gentleman did, to explain that decline in the number of successful cases outside the rules, particularly given the current refugee crisis. We support hon. Members and campaigning organisations who favour a broadening of the categories of people who qualify under family reunion rules, and we ask the Minister whether he will work with experts, for example from the international Red Cross, and legal experts to broaden the scope of family reunion rules to reach a fairer and more just policy.

I want to echo some of the concerns raised about how the rules work in practice, even for those who are fortunate enough to fall within their ambit. First, it is true that family reunion is far from straightforward. Many require support, including legal support. In Scotland, solicitors can still provide help through advice and assistance funding from the Scottish Legal Aid Board. I can safely say that in my time as an immigration solicitor I never felt I was in any way wasting public funds by providing that service. The evidence gathered by the British Red Cross in its report “Not So Straightforward” backs that up. On the contrary, legal advice and support is often pivotal. I urge the Government to consider a similar scheme in England and Wales.

Secondly, there must be a change to the ridiculous procedure whereby very short entry clearance periods are issued to those seeking family reunion. That often leaves poorer families facing a near impossible task of gathering together funding for travel in the short time allowed. Will the Minister look again at the limited entry clearance period that is granted? Thirdly, we must find ways to make it easier to submit applications. Many applicants, 95% of whom are women and children, are required to travel to third countries to find their nearest British embassy. The Red Cross has highlighted the risks of violence, torture and harassment that a majority face when making that journey, and there is evidence that certain high commissions fail to follow correct practice in dealing with applicants—for example, turning away children in Rwanda because they arrived without passports. Will the Minister work with organisations such as the Red Cross to explore alternative ways of submitting applications?

Fourthly, as all hon. Members will have experienced in general immigration work, there is sometimes—not all the time—an infuriating tendency for entry clearance staff to refuse applications because there is one missing document, or one part of the form that has not been completed properly. Instead of clarifying the situation with a simple phone call, they simply refuse applications and protracted, expensive appeals follow. Can the Minister ensure that all possibilities of seeking clarification or further information are exhausted before family reunion applications are refused?

Finally, we could have a whole separate debate on the operation of the Dublin regulation and processing of “take charge” requests. The right hon. Member for Orkney and Shetland made many valid points about that. It is pivotal for children—and others— living in the awful conditions at Calais and Dunkirk or in camps in Greece to be reunited with families as quickly as possible. It has been difficult to monitor progress, and some of the answers to parliamentary questions have been frustrating, but we should all be pushing the Government to do everything possible to speed that process up, and we will continue to do that.

The Government have provided protection and shelter for refugees in regions neighbouring conflict zones, and they have done some admirable work in that regard. That is beyond doubt, and other countries should follow that example. However, the Government have also recognised that work in the region is not enough and that offering a place of safety to many is also important. In doing that, surely it makes perfect sense to include the broader set of family members of refugees who are already here. It is the right thing to do to protect people and families, stop perilous journeys and make a just contribution to alleviating the awful crisis that continues to rage.

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[Keir Starmer]

Of course the churches should, and do, play a part in providing support, as do many others. There are people in the camps across Europe who are trying to provide the best support they can, and that is welcome. It is, of course, a tall order to provide the help wherever it is needed, but that goes to the question of how many staff are deployed and where. In a sense, we need to step back, take a look at the rules and the reunification framework in the round, and review it across the board.

[Stuart C. McDonald]

The hon. and learned Gentleman quite rightly emphasises the importance of time, particularly for children. He will be aware that a few months ago four or five children from the camps were admitted, thanks to a tribunal ruling, on human rights grounds because the Dublin procedure was so slow. Does he agree that one option for the British Government, rather than challenging that decision, would be to implement it more widely? That way, rather than having to wait for the children to go through the French process first and then make a take-charge request, the children could be brought to the UK straight away.

[Keir Starmer]

That challenge was brought by, among others, lawyers working in Doughty Street Chambers—the chambers that I am still associated with. I think the children arrived in St Pancras, which is in my constituency. That demonstrated how quickly things could happen if a court approved the process. In fairness, it is not for me to tell the Minister what approach the Government should take to the appeal, but clearly speed is of the essence. There have to be practical and effective ways for children and their families to exercise the rights to which they are entitled. It is marked that there are still children relatively near, in parts of northern Europe, who have a right to reunification here but that the process is working far too slowly.

It is often said that when we respond to refugee children on their own, in Europe or elsewhere, there is a risk that if too much is done, it will encourage others to follow their path. I have been very cautious about that argument for two reasons. First, although when we talk about immigration more widely we might have to engage with the pull factor argument, when we talk about refugees we should recognise and focus on the push factors. Refugees are fleeing. Over the years, families have split as they have fled across borders. Secondly, there are children right here, right now who are already on their own in different parts of the world. For my part, and I expect for everyone else, I am not going to say, “We mustn’t extend the support that they need right here, right now lest others follow in their wake.”

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[Richard Harrington]

I have every sympathy with what the hon. and learned Gentleman says. It is a feeling that a lot of emphasis has gone into one programme but not into others. I hope to convince him—if not now, then at other times as the process proceeds—that that is not the case, but it is a perfectly reasonable point to make.

[Stuart C. McDonald]

The key question to which we would like an answer is whether the Minister will at least take away the suggestion that the current approach, in which a child at 17 can apply for reunification but there is an arbitrary cut-off at 18—is sensible. We should consider their circumstances. Did they live with that family beforehand? Are they wholly dependent on the family? Will he at least take that away and work with others to implement a more sensible rule?

[Richard Harrington]

I thank the hon. Gentleman for that intervention. I point out—I was going to mention this a little further on—that there will be revised guidance on immigration rules, and many of the points mentioned in this debate will be taken into consideration. If he bears with me, I hope to satisfy him, if not in content then by showing that I am trying to answer some of the questions raised. However, I must make the point that there are already several ways for families to be reunited and the resettlement schemes are part of that.

Our family reunion policy allows immediate family members of those granted protection here or who were part of the family before the sponsor fled their country to reunite in the UK. It reflects our obligations under the refugee convention. As I have said, we work closely with the UNHCR to include the most vulnerable people in the Syrian resettlement scheme.

The Immigration Act 2016, which passed very recently, announced our intention to resettle from Europe a number of unaccompanied refugee children, mentioned extensively by all right hon. and hon. Members here, particularly the shadow Minister. Under that initiative, we will prioritise family links in the UK. A point has been made about the speed at which family reunification takes place. It has been described as far too slow, and we should do what we can to ensure that the Dublin process works far more quickly for the sake of such children, some of whom the right hon. Member for Orkney and Shetland has seen on his visits to Calais, Dunkirk and elsewhere. Again, that is not a point that we completely ignore.

At the moment, we are meeting many of the organisations that have been mentioned today and other member states to find ways to make this process much quicker. The Immigration Minister has been in Greece and senior officials have been to Italy and France to discuss how it is done. There is no question about it—we agree that the system has to be speeded up. That is why earlier in the year we sent a UK expert to France and why we now have a permanent secondee in the Italian Dublin unit. Shortly, we will be seconding further people to Greece. We have already offered 75 asylum and immigration experts to assist Greece in operating the hotspots; 18 have already been deployed and are working there and the rest are in the process of being deployed.

We are really looking at entry clearance timetables, including with the Red Cross, which the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald) mentioned. It is open to applicants to tell us when they want the visa to take effect—we are not going slowly. Sometimes there is the implication that we are trying to make the process go slowly to stop people from wanting family reunification.

This is a difficult field. The shadow Minister and the right hon. Member for Leicester East, the Chairman of the Home Affairs Committee, mentioned people traffickers. There is not a single member of this House who could disagree with anything that has been said about people traffickers. However, family reunification is vulnerable to people traffickers.

For example, we have heard—I accept that this is just the sort of thing that people hear, but it has been heard by people on the ground—that there were 50 people on the Bosnian-Macedonian border who claimed to have the same uncle in a village in Sweden. The people traffickers actually tell people to say that they have family in different countries, even down to individuals. I hope that right hon. and hon. Members would not think that that means that I think “Oh, we shouldn’t have family reunification, because some people try to exploit it”, but it does mean that officialdom has to try to verify carefully that these are genuine family reunification cases.

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[Stuart C. McDonald]

rose—

[Richard Harrington]

I will just finish my sentence and then I will happily accept the hon. Gentleman’s intervention.

More than 30 children were accepted between January and April. Many people say that that is totally inadequate and that things are moving at a snail’s pace, but they are speeding up; there is absolutely no question about that. There are many cases now in train and transfers can happen within weeks; there is often an implication that it is months, or even longer.

However, under Dublin, the children need to apply for asylum in France. There is a French NGO that the Government work closely with, called Terre d’Asile; my French is appalling, Mr Bone, for which I apologise. It is funded by the French Government, with our help, to help us to do this. No one child or adult need remain in those camps, but it is impossible to know how many children there are who fall within this. Whether there are 50, 100 or 150, the numbers do not matter to us, because we want to get them processed quickly.

There is lots of speculation about numbers; it is very easy for very good organisations and very well-meaning organisations to come up with numbers. There have been surveys and there has been sampling. However, it is our job to ensure that those children who do qualify understand the process and that the process is explained by people who can speak to them in their own language and in a simple manner. I understand that there is a lot of fear among the children about the French authorities and other authorities. In the countries that these children come from, people do not think of authorities in the way that people think of authorities in this country. So there is work to be done. However, the British Government are doing a lot to work with the French authorities. We must remember that they are in France; we are operating overseas and our officials are still UK officials. They are not French officials and we cannot ignore the fact that they are in France.

I apologise to the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East; I will give way to him now.

[Stuart C. McDonald]

I am grateful to the Minister for giving way. He has given welcome reassurances that the process of taking children from Calais and Dunkirk has been speeding up. Other Ministers—including, indeed, the Home Secretary—have given such assurances as well. However, when Members submit written questions that ask for hard numbers and processing times, we keep getting answers that say those cannot be provided. An excellent report from the Home Affairs Committee has asked for that sort of information to be made available. Will the Minister encourage his colleagues to ensure that it is made available, so that we can check that these assurances are worth listening to?

[Richard Harrington]

The hon. Gentleman is asking, “Will I encourage my colleagues to disclose as much information as they possibly can?” I think the answer is, “Absolutely. Yes, I will.” I hope that the right hon. Member for Leicester East would agree that more numbers are forthcoming than was traditional under previous Governments, when there was significantly less information on the subject.

Over the last five years, the rate of family reunification has been 4,000 to 5,000 per year, but I see that increasing with the different schemes that are happening. It is for our Government to help the other Governments in mainland Europe to provide the machinery, so that we can resettle those people more quickly.

One could argue that the Governments of mainland Europe have been so overwhelmed by the numbers that they have not been able to process the unaccompanied children for family reunification. Again, I do not think that that is down to lack of will. I just think that the numbers have completely overwhelmed them. From our end, it is important that we do everything that we can to help them to catch up.

I will go on to the points that have been made about the immigration rules, which enable British citizens and people settled in the UK to sponsor their spouse or partner and children under 18 to join them here. Obviously, they have to make the appropriate entry clearance application and meet the relevant criteria. That is our international obligation. The rules allow those with refugee leave or humanitarian protection status to sponsor a spouse or partner with whom they have formed a relationship after they fled their country of origin. The rules are wider than many would think, but I accept that they are not as wide as many would want. They were strengthened in the previous Parliament. The Government do not accept that the rules are unfair. We believe that they have the right impact and help to restore public confidence in this country in the immigration system.

An important point that was raised several times this afternoon—