Refugees and a Family Life
A simple answer to this question is that it is extremely unlikely that a refugee or asylum seeker will establish a sufficient ‘family life’ in the UK to engage their Article 8 rights in the event that asylum status is denied. This is unless the refugee or asylum seeker in question has arrived with their family.
If a person is granted asylum can their family join them in the UK?
After 30 August 2005, any person who has been granted humanitarian process or refugee status has the right to be joined by a partner and any children who they had left behind in their home country. The person does not have this right when their asylum application is being processed or going through the tribunal appeal stage. Not only does the Home Office often take months, if not years to issue a Notice of Immigration Decision (in most cases refusal) but an individual could then wait months or years further in a state of uncertainty whilst their appeal if heard, possibly adjourned and then finally they receive the Immigration Judge’s determination.
How long can the asylum process take?
The Home Office has targets to decide asylum claims quickly which is, of course, in their own interest particularly when in 2006, for instance, only 10 per cent of initial decisions resulted in asylum being granted and an extra 9 per cent in other forms of leave being granted. The Immigration & Asylum Chamber has current targets to get a determination written for asylum cases within six weeks of receiving the Notice of Appeal forms. This increases to eight to ten weeks for in country appeals, out of country and visit visa appeals. However, the appellant themselves may not receive the decision until two/ three and sometimes up to six/eight weeks after the appeal hearing. If the appeal fails then the appellant will not be immediately removed; they will have waived their rights to financial help for voluntarily returning home by continuing with the appeal process. So, they might be not only unwilling but also unable to return home and they may continue to remain in the UK illegally unless the authorities find and arrest them.
Is life put on hold for asylum seekers?
Many asylum seekers spend years of their lives (for instance, their 20s) living in an uncertain state in the UK and this results in long lasting issues as this is often the time when people make serious relationships and have children. There are cases which demonstrate the sacrifices that an appellant may make to family life. For example, in the case of MT (Zimbabwe) 2007 the appellant would not live with or marry her partner in case she was removed. Despite the fact that asylum seekers are given a small weekly benefit and instructed not to work, some such as the appellant in the case A v SSHD (2007) refuse to put their life on hold. This appellant had married and become an approved foster carer, like his wife.
What does a person with refugee status or humanitarian protection have to show if he/she wants their family to join them? Does the family have to claim asylum?
No, a person with refugee status or humanitarian protection must simply demonstrate that they are a settled sponsor in the UK as with the usual immigration rules for the admission of family members to settle. They do not have to meet the same standard of maintenance and accommodation as non-refugee settlement sponsors.
The family members themselves, which is quite restrictive here and includes only a spouse or unmarried partner and any minor children, do not have to demonstrate their own ‘well founded fear of persecution.’ There is currently a concessionary basis to consider other family members who do not fall into one of the above categories but who did form part of the family unit back in the home country. This is currently under review to be further clarified.
The Refugee Qualification Directive 2004 says at Article 23.1 that ‘member states shall ensure that family unity can be maintained’. Often in asylum claims in which individual cases are linked by family ties, the dependents’ cases will ‘stand and fall’ with the main appellant’s case. This just means that if the main appellant succeeds then all appellants succeed and vice versa if the appeal is dismissed, all appeals are dismissed.
What happens to the refugee’s family after the five years’ leave that the refugee is given in the UK?
Since 30 August 2005 the policy was changed from giving those with refugee status indefinite leave to remain to giving them five years’ leave. After five years, the leave may be renewed depending on the current situation in their home country. The leave granted to family members runs to the same length as was given to the refugee, including any renewals of leave. Of course, this increases the levels of uncertainty for refugees and their families.
If after five years, any family life in the UK must either be separated or uprooted to another country. This includes any family life formed during the period in which their claim was being decided or in the five years’ leave. Home Office policy is not to remove anyone who has been married for two years before the enforcement date however the refugee is unable to marry such a partner without a certificate of approval. In most cases, an application for such a certificate can expedite their asylum, often leading to refusal. If the person is a failed asylum seeker, they are unlikely to get permission to marry as it is likely that this will be seen as a marriage of convenience.