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45 Cards in this Set

  • Front
  • Back

Two opposing theoretical perspectives

- Human and legal instinct to recognise and protect the family and the fundamental right to family life


- traditional approach: immigration law is a matter of state sovereignty

Lister

Defends intimate association of family to base residence rights

4 key issues

Difficulty in defining 'family'


Acceptable and unacceptable conditions


Human rights and EC law constraints


High degree of politicisation

Admission procedures

Proof and decision making validity and proof of foreign marriages and divorces



Requirements

Maintenance, accommodation, integration

Denial of entry and residence

Return abroad to complete formalities

Abuse of system

Fraud, sham marriages etc

Deportation or removal

If irregularity found or criminal convictions

State control

Struggle against state control and seemingly arbitrary and repressive rules

Migrant integration

Cultural tension

Womens resistance

Feminist resistance against patriarchal structures

Politicisation

Changes in regulation often portrayed as response to 'crisis'

Multi-level governance

EU and HR rules and tensions with state sovereignty and control

Apply to settle: Partner or family member must have...

- British citizenship


- Settlement in the UK


- Asylum or humanitarian protection in the UK

Apply to settle: You must prove that...

- You're 18 or over


- Your relationship to your family member is genuine and recognized in the UK


- You intend to continue living with the family member or partner in the UK


- Adequate place to live


- Good knowledge of English

Apply to settle: Refusal of application

- Criminal record


- Provided false or incomplete info

Joining your partner: definitions of partner

- Married or civil partnership


- Living together in a relationship for 2 years


- Engaged to be married or become civil partners

Financial requirements

£18,600 per year for yourself


£22,400 per year for you and one child


£2,400 per year for each additional child

Exceptions to financial requirements

No need to prove if you or your partner get certain disability benefits or Carer's Allowance


But required to adequately accommodate and support any dependants

Rules of those who are engaged

Must prove that you plan to marry or civil partner with 6 months of moving to the UK

Bringing children

Must be under 18

Joining your parents

- You’ll be living with your parent or parents


- You’re not married, in a civil partnership or living an independent life


- You’ll be supported and accommodated adequately without using public funds, or you meet the financial requirement

Coming to look after your child

- Child under 18


- British citizen or settled in the UK


- Sole parent/ you want to help carer or parent who is not your partner


- Prove that you are taking active role in the child's upbringing


- Able to support and accommodate yourself without claiming public funds

Coming to be cared for

Adult dependent relative


- Prove that you need long-term care to do everyday tasks


- Care is not available/affordable in the country you live in


- Person you are joining can support and accommodate you without public funds for at least 5 years


- Over 18

English knowledge exceptions

National of a majority English speaking country


65 years or over


Exceptional circumstances or long-term physical or mental condition



"Acceptable" partnership

1997 immigration rules widened to include same-sex marriage, registered civil partners and unmarried partners


- Also fiancees

Polygamy

Additional spouses not accepted, different traditions of marriage

Requirements for spouses to have previously met

Does not account for fiancees in arranged marriages

Primary purpose rule (previous rule from 1977 to 1997)

Controversial


Entry refused if the immigration officer is not satisfied the primary purpose of the marriage was not settlement in the UK


Disproportionately affected Asian community, settlement following arranged marriages difficult

Wray (Moral Gatekeeping)

Requirement for parties to have met is viewed as a backdoor to the primary purpose rule


Enforces a particular view of what is/what is not an appropriate marriage

Cultural disparity between (parties to have met)

Hostility to continuation of traditional community ties by marriage - encouragement to seek partners domestically



Failure to understand complexities of multiple motivations and considerations surrounding marriage choices

Probationary period (tightened since 2012)

Temporary admission for the first 5 years


Leaving those who are bereaved, or in an abusive or broken relationship in a vulnerable position

Entry clearance

Expected to come as a spouse from outside the UK and to return to country of origin if necessary to do so

Baiai

In this case the House of Lords considered a scheme established under section 19 of the Asylum and Immigration (Treatment of Claimants etc ) Act 2004 to prevent sham marriages. The scheme required persons subject to immigration control and not settled in the UK who wished to marry here to obtain entry clearance expressly for that purpose or a Certificate of Approval (COA) from the Home Office. The Secretary of State’s policy was not to grant a COA unless a person had been granted leave to enter or remain in the UK for more than six months, with at least three months remaining at the time of the application, or if there were especially compassionate features.The House of Lords upheld the Claimants’ argument that the scheme was incompatible with the right to marry contained in Article 12 ECHR. Although it was open to the Secretary of State to impose reasonable conditions on the rights of a third-country national to marry in order to ascertain whether the proposed marriage was a marriage of convenience, Article 12 did not permit significant restrictions to be placed on all marriages irrespective of whether they were genuine or not.

Immigration Act 2014: Sham marriages

Now non-exempt planned marriages reported to S/S who determines whether investigation needed


(centralisation)

Legal definition of sham marriages

- EU Council of minsters Convention:marriage ‘with the sole aim of circumventing the rules on entry and residence’




- 1999 Act now amended by 2014 Act thereis no genuine relationship between the parties to the marriage, and (c)either,or both, of the parties to the marriage enter into the marriage for one or moreof these purposes— (i)avoidingthe effect of one or more provisions of United Kingdom immigration law or theimmigration rules; (ii)enablinga party to the marriage to obtain a right conferred by that law or those rulesto reside in the United Kingdom.




- Directive 2004/38: Member States may takemeasures against ‘abuse of rights or fraud, such as marriages of convenience’

R (Quila and another) v Sec of State for the Home Dept [2011] UKSC 45

Supreme Court determined that the ban on the entry for settlement of foreign spouses or civil partners unless both parties are aged 21 or over, contained in paragraph 277 of the Immigration Rules, is not a lawful way of deterring or preventing forced marriages.

Quila the 21 age limit to deter forced marriages

Secretary of state essentially had no evidence to prove that this would stop forced marriages


Failed to prove that this would deter any arranged marriages


The only true conclusion is that it would keep a number of legit young couples apart

Wrays critique on immigration law

n‘An acceptable spouse may be a differentcreature to 40 years ago but his or her contours remain the invisible mouldagainst which certain applicants are measured and found wanting. Their true defect however may be not thattheir marriage is a sham but that they are unwanted and unwelcome immigrants’


‘Class intersects with ethnicity inestablishing who is to be most severely regulated’ (language skills, financialconditions, etc)}}

More distant family

Boils down to need of personal care


Insufficient recognition of significance of wider family ties in other cultures OR is it acceptable to shape our migration policy in relation to our prevailing concept of the family

The differences that EU law has imposed

Right of entry, work, equal treatment, stronger protection against expulsion, additional conditions of means and health insurance, wider range of dependents, no need for husband and wife to live together

Reverse discrimination


Morson and Jhanjan case

whereDutch nationals that were in a purely internal situation could not enjoy family reunification rights in theNetherlands under Dutch law unless they satisfied certain conditions, whereas nationals of other MemberStates who moved to the Netherlands could do so automatically, by virtue of EC law.

Uecker and Jacquet

where the third-country national wives of German nationals working inGermany sought to rely on EC law, and in particular the free movement of workers provisions (as the wivesof German workers) to obtain employment rights in that country. The Court found that the situation of theapplicants was purely internal to Germany as their husbands had not exercised their freedom to move andwork in other Member States and, consequently, a right could not be derived from EC law.

Singh

Internal situation: British woman worked in Germany where she lived with her Indian husband on the basis of EU law. When she returned to Britain her husband was refused right of residence as this was declared 'internal situation'. disallowing reliance on EU law


Courts of justice: did not accept this. When returned to national country after exercising rights of EU law they do not return to their internal situation


They can rely on EU rights to challenge any measures making their return to home more difficult

Carpenter

Where the CJEU held that an EU citizen providing services in another Member State might be able to rely on the Treaty rules on free movement of services in Article 56 TFEU in order to secure the entry and residence of a third-country national family member in his or her State of nationality