Refugee Children: Family Reunion in the UK

Stuart C McDonald Excerpts

Thursday 22nd February 2018 Westminster Hall

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

Thank you, Dame Cheryl, for chairing today’s debate so astutely, so we could hear so many powerful and thoughtful speeches. I pay a warm tribute to the hon. Member for Coatbridge, Chryston and Bellshill (Hugh Gaffney) for introducing the debate, for his powerful advocacy on the issue, and for securing such an amazing turnout. I emphasise that on Friday 16 March we have a significant opportunity to change the rules on family reunion and legal aid for family reunion applications. If as many hon. Members as possible could put that date in their diary, that would be greatly appreciated.

It is good to debate this important issue again; it must be the third or fourth time we have debated it in the last couple of years, which illustrates the strength of feeling among hon. Members and their discontent with the rules. That discontent essentially falls into two parts: first, discontent about the difficulties that families face in going through with a family reunion, even when people qualify under the rules; and secondly, discontent about the rules being drawn too tightly.

Before I touch on each of those aspects, it is important to recall how important family reunion is. It is important that people applying to come here can be reunited with family members, because very often that provides a safe, legal route to a place of safety—a route that would not otherwise exist. It is also vital for the family members who are here already. Their lives can be made unbearable, as hon. Members have attested, and their integration can be made much more difficult by separation from, and the suffering of, their loved ones who are unable to join them here.

Family reunion helps to achieve the aim, which I think we in this Chamber all share, of reducing the number of dangerous journeys that have to be made. It also undermines the people smugglers’ business model. After all, which people are most likely to do anything open to them—to move heaven and earth—to get to the UK? People in dangerous or difficult situations who have a reason to be here in the form of family. If there is no safe, legal route, people with family in the UK will be the most likely to turn to the people traffickers.

I turn to the first issue that I outlined: the procedures for those who are fortunate enough to qualify. As I will show, the requirements can be complex, and it is not straightforward for a person to prove that they meet them, as the Red Cross explained in an excellent report. Even proving what would seem a very simple part of the rules, such as two people’s relationship, is sometimes not easy. In the case of children, we instinctively think of a birth certificate, but what if someone is from, say, Eritrea? How do the UK Government form a view on whether to give such documents evidential weight? Will we need an expert report on the authenticity of that birth certificate? Should we get a DNA test? What if the child is adopted or is a stepchild? All that is without even thinking about language and cultural barriers, never mind levels of education.

I used to be an immigration solicitor, and had the fortune to assist a number of families with such applications. It was always clear as day to me that legal aid to provide that advice was appropriate. I am glad that it is still available in Scotland for family reunion applications; it should be available in the rest of the United Kingdom, given how important and difficult these issues are.

Turning to the various rules that apply to children seeking to be reunited here, part 11 of the immigration rules allows for pre-flight children who are under 18 to obtain refugee family reunion with parents here. It is a solid enough starting point, but even here there are some questions. For example, why should a 17-year-old who moved out of the family house to go and study, just months before his family fled, be excluded from the scope of the rules? Much more fundamentally, why draw the line at 18? Everyone here would be horrified to be told that their 18-year-old had to be left behind, while their 15 and 17-year-old siblings were able to come to the United Kingdom. A more generous option would, of course, be to make the provision available for those up to the age of 21 or 25, or we could apply a test of whether the adult child was still part of the household, and/or a dependent. There are different perspectives, but unfortunately, again, UK immigration rules seem to take one of the most restrictive options possible.

If someone does not qualify under the general family reunion rules, they look to part 8 of the immigration rules, where there are alternatives for children. Here is probably where we find some of the greatest injustices. For children seeking to join other relatives, such as siblings or uncles and aunts, the tests are infinitely more difficult. They must prove not just their relationship, but

“serious and compelling family or other considerations which make exclusion of the child undesirable”.

Crucially, the sponsor must also be able to prove an ability to maintain and accommodate the child without recourse to public funds.

Hon. Members will all have had—some spoke about this—new refugees at their surgeries. An example would be a Somali couple, who have been here just a few months with younger teenage children. They may be making good attempts to integrate and learn English, but may be hindered by the distress of separation from a niece or sister who they fear for and believe is vulnerable without other family support. The idea that they will be able to meet all those financial tests so that their sister or niece can arrive here is ridiculous.

If there are serious and compelling considerations that make exclusion of a child undesirable—itself a tough test—surely in no circumstances should there be an additional financial test. That test can force families into horrible choices. What if the family has enough financial resources or accommodation to meet the tests in relation to one child, but not a second? Just this morning, I heard of a family forced to make such a horrendous decision. They could pick one child, but not both; otherwise, the financial and accommodation tests would not be met.

Injustice is served not only to kids seeking to join relatives other than their parents, but to adult children seeking to join their parents. Those 18 and 19-year-old kids have to meet some even more fiendishly challenging legal tests: they have to show that they are in not “exceptional compassionate circumstances”, but “the most exceptional compassionate circumstances”. Think about a 19-year-old daughter living alone in a refugee camp in Kenya. Today, those are hardly exceptional circumstances, never mind the most exceptional, but I think most people in the Chamber would think that she should qualify for family reunion. How many of us could honestly say that if we were in the position of the Somali couple to whom I referred, we would not be tempted to resort to the people smugglers, if that was the only route by which we could get our daughter to the United Kingdom? Government policy is, in essence, in danger of driving parents to make those decisions.

The same maintenance and accommodation requirements risk an even more horrendous situation. Imagine that a 19-year-old in a refugee camp has been seriously harmed. How can it be that we might end up with a decision that says, “I acknowledge that you are living alone in the most exceptional compassionate circumstances, but we’re still not going to let you in, because you aren’t earning enough money yet to meet the financial thresholds”? That would be an incredible injustice.

Families are left to make an application to the entry clearance officer outside the rules, desperately hoping that he or she will exercise discretion and allow that 19-year-old in anyway. The Government say that this is the answer to the problem, but there were only 21 cases in 2015 and 49 in 2016 where such applications were successful. In the circumstances we face, those are worryingly low numbers. If the rules are complex, the guidance on how to exercise discretion, which again requires exceptional circumstances and recognises that grants will be rare, is even more so. We also have to acknowledge that those successful in applications outside the rules will be granted much more restrictive rights than if they had been successful under the rules.

If there were time, I would also criticise the unfairness towards refugees who have been granted UK citizenship and are deprived of family reunion rights. I could also criticise rules on post-flight children, which are restrictive as well. I join other Members in criticising the intransigence of the Government in refusing to allow refugee children who are here to sponsor their parents to come here, a situation that the Home Affairs Committee has described as “perverse”. The Government’s argument that it would create a pull factor is not based on any evidence, and is horrendously unethical. At the end of the day, we need to do what is just and fair. The idea that we should treat people—children in this case—unfairly simply to disincentivise other people, including children, from seeking asylum in our country is pretty outrageous.

I hope that the Minister is listening to the arguments that have been powerfully made by hon. Members from across the House. If not, I hope that hon. Members will join us on Friday 16 March in ensuring that progressive change is made to the UK’s family reunion rules.

--- Later in debate ---

[The Minister for Immigration (Caroline Nokes)]

Thank you, Dame Cheryl. It is a pleasure to serve under your chairmanship. I congratulate the hon. Member for Coatbridge, Chryston and Bellshill (Hugh Gaffney) on securing this debate and I reassure him I will certainly leave him a couple of minutes at the end.

I start by thanking everyone here today who has contributed with thought-provoking and compassionate contributions. I have listened carefully to the many accounts of how important it has been for refugees in Members’ own constituencies to have their family members join them, to support their wellbeing and their integration into society. Like other Front-Bench spokespeople, I will not pick out individual contributions at length as I am conscious that I am very short on time, but I would reassure hon. Members that during the past five weeks or so that I have been in this role, I have taken the time to meet representatives from charities in my own constituency and nationally. I was particularly moved to meet Lana and Yameena, two Southampton University students. Lana had very specific experience of refugees when she was living in France and her family had welcomed a number of young refugees into her home. She was very clear to describe them to me as her brothers.

I assure the House that we are listening to the concerns about refugee family reunion. I know from my early discussions with non-governmental organisations and international organisations the importance placed on the issues, and that has been reinforced during our debate today. They are also issues my predecessor discussed on many occasions with NGOs, in the context of our wider asylum and resettlement strategy. I look forward to continuing that important work.

Several colleagues have focused on the question of extending the family reunion criteria, which is the subject of Baroness Hamwee’s private Member’s Bill and of the private Member’s Bill from the hon. Member for Na h-Eileanan an Iar (Angus Brendan MacNeil)—if the hon. Member for Dundee West (Chris Law) can be nervous about the pronunciation of that, he can probably imagine how I feel—which was introduced earlier this week and is due to come before this House for Second Reading on 16 March.

The Government’s policy objective for refugee family reunion remains to ensure that we are able to bring together pre-flight families and dependents who are in precarious or compelling circumstances. We must ensure that our policies support those who need our protection who cannot remain in their country or region of origin. I would therefore ask hon. Members to reflect on the policy objective of the private Member’s Bill, because the proposals, as currently drafted, would go far beyond that. It could lead to the policy being used by significantly more people who have no protection needs or who are not necessarily in precarious positions.

The Government strongly support the principle of family unity and we have a comprehensive approach to refugee family reunion set out in the immigration rules and our family reunion policy. Our starting point is that family reunion is a matter for immigration rules and policy, rather than primary legislation. Many hon. Members have highlighted that the family reunion rules provide only for immediate family members of refugees, but the immigration rules and resettlement schemes provide for extended family members to join their family here, if they are in the most precarious and dangerous circumstances.

[Stuart C. McDonald]

The Minister is right to highlight that there are other routes available to different family members, but will she comment on the maintenance and accommodation test? Even if an applicant can show that they are living in the most compelling compassionate circumstances, that application could still be rejected because the sponsor in the United Kingdom does not meet a certain financial or accommodation threshold. Surely that is an unjust way to go about things.

[Caroline Nokes]

I thank the hon. Gentleman for raising that with me. That is one of the points that I will take away with me from today’s debate.

We provide for British citizens to sponsor family members, there is provision to grant visas outside the rules in exceptional cases, and the mandate refugee scheme enables those recognised by the UNHCR as refugees to join close family members here in the UK.

I have noted the concerns raised today that so-called family reunification under the Dublin regulations may no longer be available post Brexit. However, Dublin does not confer immigration status simply because an individual has a family member in the UK. It is a mechanism for deciding the member state responsible for considering an asylum claim. It is for those seeking asylum and not those granted refugee status.

Having said that I was not going to pick up particular points, I would like to pick up on those made by the hon. Member for Plymouth, Sutton and Devonport (Luke Pollard), who raised the Sandhurst treaty. Many Members have referenced Dublin III and the Dubs scheme. I was fortunate in 2015-16 to be a member of the Organisation for Security and Co-operation in Europe with Alf Dubs—he insisted that I call him Alf at all times, so I apologise if I refer to him incorrectly today. Travelling abroad with Lord Dubs was an incredibly instructive experience. The Sandhurst treaty was signed very soon after I came into this role—I think within the first two weeks.

I reassure the hon. Member for Plymouth, Sutton and Devonport that we have committed £3.6 million to enable us to strengthen our co-operation with France on the operation of the Dublin regulation and the development fund, and to work with it to identify projects that support genuine claims through the Dublin process. A significant part of the Sandhurst treaty was about looking at the whole route for refugees. It is crucially important that we do not look at it in isolation either in the middle east and north Africa region or in Calais. We have to look at the entire journey that individuals make.

On the 480 children that will be accepted under Dubs—the number was at 220 when I came into this role—we are determined to ensure that, by changing the date and working closely with Greece and Italy, we fulfil that requirement. I regard it to be an absolute priority to take the 480 young people we have committed to.

Anyone transferred under the Dublin regulation will be expected to leave the UK if they are found not to need protection. Our family reunion rules will continue to enable immediate family members to reunite with their loved ones in the UK safely, regardless of the country in which they are based.

Pretty much every hon. Member raised legal aid and the cost of legal representation for family reunion cases. On 30 October, the Lord Chancellor announced the start of a review of legal aid reforms, which will include an assessment of the changes to the scope of legal aid for immigration cases, and will report later this year. Although family reunion cases generally do not fall within the scope of the legal aid scheme, exceptional case funding may be made available where it is legally required. We are committed to providing clear guidance and application forms to support applicants through the family reunion process, and are working with key partners such as the British Red Cross and UNICEF to improve the process for considering family reunion applications.

It is vital that our focus remains on those most in need of our protection—particularly those fleeing conflict. The Government have invested significantly in supporting the most vulnerable refugees through our resettlement programmes, which offer safe and legal routes to protection and are designed to keep families together. By 2020, we will have resettled 20,000 refugees from Syria. We announced this week that we are at the halfway point, so 10,000 vulnerable families have been resettled in this country and a further 3,000 children and families have been resettled from the wider MENA region. Last year, we provided 6,212 people with protection under all our resettlement schemes. Over the past five years we have issued 24,700 family reunion visas, and since 2010 we have provided 49,830 people with protection status in the UK—they are entitled to apply for their qualifying members to join them.

I believe that our comprehensive approach to refugee family reunion already caters for the types of case that hon. Members are concerned about and provides safe and legal routes for families to reunite here. However, we need to concentrate our efforts on ensuring that our existing resettlement schemes are used to full effect, and that the current rules work properly and effectively. In that way, we will continue to help those who need it most.

I have already met representatives from UNICEF and the United Nations High Commissioner for Refugees. I thank the Refugee Council for sending me the report “Safe but Not Settled”, which looks at how the separation of refugees in the UK from their family members affects their successful integration into their new life in the UK. I look forward to further meetings with representatives of the Refugee Council, the Red Cross and other non-governmental organisations to discuss the important issue of family reunion in the coming weeks.

I therefore ask hon. Members from both sides of the House and representatives of NGOs to continue working with the Government to build on the existing family reunion policy and process to make our resettlement schemes and immigration rules work in the most effective way. In that way, we can ensure that more families are reunited as quickly, legally and safely as possible.