18/19, A. Cameron, ‘The Influence of Fundamental Rights on UK Immigration Control: Right of Free Movement and Right to Private and Family Life’

Author: Alec Cameron

Migration control is a key element of state sovereignty[1]: every state has the right to create and implement a legal framework of immigration control, within the constraints of its international obligations[2]. The United Kingdom, therefore, is entitled to create a legal structure regulating the immigration of close family members of British citizens and UK permanent residents into the UK. In practice, this framework has been heavily influenced by both fundamental rights of European Union law – primarily, the right of free movement of EU citizens, and human rights norms – namely Article 8 of the European Charter of Human Rights (“ECHR”) [3].

Within the UK immigration framework arise two distinct routes of family reunification: the ‘EU route’ and the ‘UK route’.  In theory, should be easily distinguishable: the ‘EU route’ is determined by EU policy, whereas, the ‘UK route’ is determined by UK policy. However, progressive strengthening of fundamental freedoms of EU law has extended the scope of EU law into realms once thought of as matters of purely internal control[4]. Moreover, Article 8 of the ECHR acts as a backstop provision to both UK and EU immigration policy[5].

 

THE ‘EU’ ROUTE

In accordance with European legal obligations, primarily The Treaty on the Functioning of the European Union (TFEU) and Directive 2004/38/EC (CRD), the UK legal framework has created an ‘EU route’ of family reunification whereby European Economic Area (EEA) nationals and their family members are not subject to UK immigration control but can instead rely on fundamental EU rights of free movement to enter the UK.  As such, the UK legal framework must give effect to these rights in respect of certain categories of persons i.e. EEA nationals and their family members. EEA nationals are the beneficiaries of the Immigration (European Economic Area) Regulations (“EEA Regulations)”: ‘a national of an EEA state who is not also a British citizen’[6]. Therefore, a third country national (TCN) family member of a British citizen cannot enter the UK under the EEA Regulations, however, an EEA national family member can enter if they independently fulfil the requirements listed in the provisions. A close family member of an EEA national, regardless of nationality, will be afforded rights of entry and residence.

The extent to which the UK framework takes account of free movement provisions, especially in relation to family members of EEA nationals, is hotly contested. Though implemented to facilitate the ‘EU route’ through transposing the CRD into the UK legal framework[7], the regulations have been recognised as failing to fully realise its provisions[8]. The applicable provisions of the Regulations governing entry of close TCN family members of EEA national permanent UK residents have been heavily criticised and the majority of complaints surrounding the EEA regulations pertain to the immigration of family members of EU citizens into the UK[9]. A clear dissonance between the CRD and the EEA regulations has been identified[10], the clearest example of friction between these two sets of provisions being the residence rights of family members[11].

Perhaps, given the differing approaches of the EU and UK legal regimes: a highly permissive system on one hand and an increasingly restrictive system on the other, areas of friction are inevitable[12]. The gradual strengthening of EU citizen’s rights of family reunification[13]  is difficult to reconcile with the increasingly politicised context of UK immigration control[14]. On the whole, the UK legal system does take sufficient account of the fundamental right of free movement in relation to the ‘EU route’ of family immigration to the UK, as the majority of EU resident citizens being ‘reasonably content’ in their enjoyment of EU rights[15]. However, implementation of free movement does not take full account of EU law and the UK system tends to display a ‘rather restrictive approach and spirit’[16] towards issues at the peripheries of the free movement sphere such as the entry of non-EEA family members.

 

THE ‘UK’ ROUTE

Despite supremacy of EU law in regard to migration of EEA nationals and their family members, the UK is empowered to determine immigration law in relation to the ‘UK route’ of family reunification. Therefore, prima facie, the UK immigration framework which regulates immigration of non-EEA national family members of British citizens and family members of TCN permanent residents is not required to facilitate fundamental rights. However, as discussed below, the picture remains unclear.

Immigration of close TCN family members of UK citizens is determined in accordance with UK immigration control, rather than free movement provisions.  The latter are triggered by cross-border movement within the EU and thus have no application to family reunification within a single member state[17]. A British citizen residing in Britain does not benefit from free movement rights[18], nor will their TCN family members. The resulting division of competencies between family reunification under ‘UK route’ or ‘EU route’ has led to a situation of reverse discrimination: UK citizens living in the UK at a disadvantage in comparison to mobile EU citizens living in Britain[19].

Reverse discrimination, in this context, is caused by several factors, including a government commitment to reducing net migration[20] and the promotion of a ‘hostile environment’[21]. Added to a UK government which cannot control immigration of EEA nationals nor their TCN family members, the ability of a non-EEA national family member of UK nationals to enter the UK has become increasingly limited [22]. Indeed, the UK has been declared as the hardest place in the developed world for separated families to reunite[23]. British citizens and UK permanent residents have, with some success, sought to circumvent increasingly onerous UK immigration requirements through relying on fundamental rights of European law. Decisions of the Court of Justice of the European Union (CJEU) in cases such as Singh[24], Lounes[25] and Zambrano[26], have eroded the traditional dichotomy between UK immigration law and fundamental rights of EU[27], furthering the role of fundamental rights within the UK immigration framework.

Ordinarily, a TCN close family member of a British citizen would be subject to UK immigration control. However, British citizens in situations such as Surinder Singh or Lounes, can assert EU rights against the UK. Surinder Singh was a landmark decision that recognised the ability of ‘returnee’ British nationals to assert community law against the UK to facilitate the entry of a TCN who would otherwise, under UK immigration regulations, have been otherwise denied entry[28]. The CJEU restricted the UK’s capacity for reverse discrimination, holding that a family member in this scenario could not be treated less favourably than European community law requires[29].

Lounes further challenged the principle that family reunification with a TCN family member of a British citizen is always to be determined by the ‘UK route’ of immigration control. Although the CRD cannot apply in such situations, the CRD provisions should apply by analogy as a result of the fundamental right of free movement guaranteed by Article 21 of the TFEU[30].

The UK Immigration framework has been amended to reflect these rulings by the CJEU. The ‘Surinder Singh Route’ is now dealt with by regulation 9 and Lounes is reflected in regulation 9A of the EEA Regulations. However, implementation of Surinder Singh, in particular, has been controversial: the UK government has been accused of unilaterally introducing additional criteria to restrict access to the provisions[31] and the application of regulation 9 and casework guidance have been subject to much change since their implementation. Whilst UK immigration regulation has taken account of the increasing scope of free movement rights, extensions have been implemented restrictively.

Furthermore, the requirement for a cross border link to trigger free movement provisions has gradually weakened. Traditionally, to access EU free movement provisions a cross border element was necessary, yet the CJEU has acknowledged that in exceptional circumstances a right of family reunification can be conferred upon from a static EU citizen[32], i.e. a British citizen resident in Britain. Although neither the CRD nor the EEA regulations will apply to a static British citizen, a TCN family member of a British citizen can derive a right of residence, in certain circumstances, as a result of Art 20 of the TFEU. Zambrano, McCarthy[33] and Dereci[34] provide authority for the principle that: where enforcement of a national measure would force an EU citizen to leave the territory as a whole, the EU citizen can derive rights of family reunification as a result[35]. Therefore, a close family member of a British citizen can enter the UK in accordance with EU law rather than UK immigration control. The increasing scope of fundamental rights of EU law has seen the purely internal realm progressively diminished, EU law can now apply in situations absent of any exercise of free movement[36] and consequently fundamental rights have become more influential over the UK immigration system. However, such application is possible only in exceptional circumstances.

 

ARTICLE 8

The UK has the right to determine entry conditions of ‘aliens’ into the UK, however, must do so in accordance with the provisions of the ECHR[37].  Article 8 alone does not impose a general obligation on the UK to facilitate immigration of close family members of UK citizens and UK permanent residents[38], but nevertheless, the UK government is under a positive obligation, in certain circumstances, to foster family life[39]. However, in recent years, driven by a commitment to reduce net migration, consistent government policies have sought to restrict the extent to which the UK immigration framework takes account of the fundamental right of Article 8 of the ECHR: the right to private and family life[40].

The case of Abdulaziz, Cabales and Balkandali established that immigration control is subject to ECHR provisions and refusing entry of a family member to the UK may be challenged under Article 8[41]. Since the ruling several challenges accordingly have been raised against restrictive UK policies. In Quila, the Supreme Court held that an amendment of the immigration rules which raised the minimum age for sponsorship and entry of spouses to 21, was an unjustified breach of Article 8[42]; in response, the government amended the rules and reverted to the minimum age to 18. Article 8 thus influences the UK immigration framework as a back-stop for both immigration policy and decisions. Since Huang[43] the Supreme Court has followed a new approach whereby family reunification claims are no longer presumed inferior to government policy without a proper examination[44], leading to some ‘major policy reversals’[45] on account of Article 8 challenges.

In response, the UK government has attempted to retain sovereignty and reduce the applicability of Article 8 to UK immigration control. Amended immigration rules[46] introduced in 2012 sought to ensure that only in exceptional circumstances would a family reunification claim, which failed to meet the rules requirements, succeed under Article 8 and to deny a potential migrant a ‘second bite of the cherry via Article 8’[47]. Again in 2014, The Immigration Act 2014 laid out guidance on how Article 8 should be applied by the courts in an attempt to prescribe judicial considerations when applying Article 8. Despite, the court’s defence of their role in determining Article 8 appeals, the UK government has successfully defeated challenges to very restrictive immigration policies. The minimum financial criteria which have created ‘insuperable hurdles’ to family reunification and the ability of TCN adult dependent relatives of British citizens and TCN permanent residents to enter the UK has ‘in effect been closed’[48]: yet these policies have not been successfully challenged.

The introduction of the 2012 rules implemented requirements ‘more precise and stringent than anything which had gone before’[49] and the minimum income requirements represent the most publicly contested immigration policy in recent memory[50].  However, despite the acknowledged discriminatory impacts[51] and the 78.3% reduction in the number of visas issued in the 6 months following the introduction of the rules, the Supreme Court held the requirements to be lawful[52]. Cases such as MM demonstrate the very high threshold applied by the courts in finding a government policy incompatible with Article 8[53], and indeed the limited influence of Article 8 on the UK framework.

Family reunification of adult dependent close family members of British citizens and UK permanent residents through the UK route has been all but abolished[54].  Prior to the introduction of restrictive rules regarding the ability of adult dependent relatives to enter the UK, an average of 2,325 visas per annum in this category were issued, this figure in now as low as 162[55].  Despite, the devastating impact of these rules on family life, the rules are extremely difficult to challenge under Article 8 which offers minimal assistance in situations to those who have not already created family life[56].

Despite the application of Article 8 the government remain able to enforce restrictive immigration policies that are detrimental to family reunification under the ‘UK route’. Further, the application of Article 8 is limited by Supreme Court judgements adopting an approach similar to that of the Strasbourg reversal position[57]: whereby state sovereignty is the leading principle in immigration decisions and fundamental rights are an exception to the default position[58]. Hence, restrictions to the availability of family reunification can be justified on the grounds of state interests and as such the influence of Article 8 on the framework is restricted.

 

CONCLUSION

The sovereign power of the UK to regulate the immigration of close family members of UK citizens and permanent UK residents is constrained by fundamental rights, namely, the EU right of free movement and Article 8 of the ECHR. The application to the UK system of fundamental rights of free movement and right to family life have restricted the UK’s ability to achieve its aim of reducing net migration and, by extension, family migration[59].

A close family member seeking to enter or reside in the UK will be subject to either the ‘EU route’ or ‘UK route’ requirements. Entry through the ‘EU route’ is determined by fundamental rights of free movement, which have been translated into UK law through the EEA Regulations. Some concern has been raised as to the compliance of the EEA regulations with EU law in relation to entry of non-EU family members[60] and the increasing scope of free movement rights in situations such as Surinder Singh.

Furthermore, the ‘UK route’ of family immigration also takes account of fundamental rights. The distinction between EU and UK competence has become increasingly blurred, and rights of free movement now apply in situations once deemed wholly internal, increasing the scope of free movement rights in the UK.

Both routes of family immigration to the UK are influenced by Article 8 of the ECHR. Government policies seeking to restrict family migration to the UK must be justified in accordance with Article 8 and successful challenges have occurred: Quila and Baiai[61]. However, in the majority of instances the courts will respect their role and treat Article 8 as an exception to the sovereign right to control immigrations. As a result, policies which seek to restrict the ability of family members to enter the UK can be largely justified.

 

[1] A, Tryfonidou, The Impact of EU law on Nationality Laws and Migration Control in the EU’s Member States (2011) J.I.A.N.L. 25(4), 366

[2] G. Clayton and G. Firth, Textbook on Immigration & Asylum Law (2018) O.U.P. 8th edn., 141

[3] Clayton, Immigration & Asylum Law, 279

[4] S.I. Sanchez, Purely Internal Situations and the Limits of EU Law: A Consolidated Case Law or a Notion to be Abandoned? (2018) E.C.L. Rev 14(1), 11

[5] J. Shaw and N. Miller, When Legal Worlds Collide an Exploration of what Happens when EU Free Movement Law Meets UK Immigration Law (2013) E.L. Rev. 38(2), 144

[6] The Immigration (European Economic Area) Regulations (2016) reg.2(1)

[7] I. Macdonald, Macdonald’s Immigration Law and Practice (2014) 9th edn. 1.56

[8] J. Shaw, N. Miller and M. Fletcher, Getting to Grips with EU Citizenship: Understanding the Friction Between UK Immigration Law and EU Free Movement Law (2013) Edinburgh Law School Citizenship Studies, 37

[9] A. Valcke, Five Years of the Citizens Directive in the UK – Part 1 (2011) J.I.A.N.L 25(3)

[10] Shaw, Miller and Fletcher, Getting to Grips with EU Citizenship, 13

[11] Ibid, 21

[12] Ibid, 53

[13] E. Sinley, E. Fenelon and N. Mole, Family Reunification Requirements: A Barrier of Facilitator to Integration? United Kingdom Summary Report (2013), 5

[14] Shaw and Miller, When Legal Worlds Collide, 165

[15] Ibid, 162

[16] Ibid, 154

[17] Sanchez, Purely Internal Situations, 15

[18] The Immigration (European Economic Area) Regulations reg2(1)

[19] H.U.J. d’Oliveira, The EU and its Monarchies: Influences and Frictions (2012) E.C.L Review 8(1), 68

[20] Invitation to Join the Government of Britain, The Conservative Manifesto (2010), 21

[21] S. Craig, Brexit and Scots Law: Immigration and Citizenship (2018) Edin. L.R. 22(1), 137

[22] R. Warren, Private life in the Balance: Constructing the Precarious Migrant (2016) J.I.A.N.L 30(2), 137

[23] Migrant Integration Policy Index – www.mipex.eu (Accessed 11 December 2018)

[24] Surinder Singh (Case C-370/90) [1992] ECR I-4265

[25] Toufique Lounes v SSHD (Case C-165/16)

[26] Zambrano v Onde (C-34/09)

[27] Sanchez, Purely Internal Situations, 13

[28] R.C.A. White, Conflicting Competences: Free Movement Rules and Immigration Laws (2004) E.L Rev. 29(3), 385

[29] Macdonald, Macdonald’s Immigration Law and Practice, 6.73

[30] R (Lounes) v Secretary of State for the Home Department (Case C-165/16), 61

[31] H Wray, Editorial (2014) J.I.A.N.L. 28(1),2

[32] S. Mantu, European Union Citizenship anno 2011: Zambrano, McCarthy and Dereci (2012) J.I.A.N.L. 26(1), 40

[33] McCarthy v SSHD C-434/09

[34] Murat Dereci v Bundesminister fur Inneres C-256/11

[35] S. Peers and C. Berneri, Iida and O and S: further developments in the immigration status of static EU citizens (2013) J.I.A.N.L 27(2), 169

[36] A. Staver, Free Movement and the Fragmentation of Family Reunification Rights (2013), 75

[37] MM case (Regina (MM (Lebanon)) v SSHD [2017] UKSC 10, 37

[38] European Court of Human Rights, Guide on Article 9 of the European Convention on Human Rights (31 August 2018) ,293

[39] Macdonald, Macdonald’s Immigration Law and Practice, 7.94

[40] S York, Immigration Control and the Place of the Article 8 in the UK Courts – An Update (2015) J.I.A.N.L. 29(3), 289

[41] Abdulaziz, Cabales and Balkandali v UK [1985] 7 EHRR 471, 59

[42] Quila and Others v SSHD [2011] UKSC 45, 58

[43] Huang and Kashmiri v SSHD [2007] UKHL 11

[44]H. Wray, Greater than the Sum of their Parts: UK Supreme Court Decisions on Family Migration (2013) P.L., 856

[45] Wray, Greater than the Sum of their Parts, 843

[46] Appendix FM and Appendix FM-SE Immigration Rules, Home Office

[47] Home Secretary, Hansard HC, 19 June 2012: Cols 762-763

[48] All-Party Parliamentary Group on Migration, Report of the Inquiry into New Family Migration Rules (2013), 7

[49] MM case (Regina (MM (Lebanon)) v SSHD [2017] UKSC 10, 1

[50] H. Wray, The MM Case and the Public Interest: How did the Government Make its Case? (2017) J.I.A.N.L 31(3), 227

[51] Wray, The MM case and the Public Interest, 229

[52] MM case (Regina (MM (Lebanon)) v SSHD [2017] UKSC 10

[53]Wray, The MM case and the Public Interest, 242

[54] Clayton, Immigration & Asylum Law, 311

[55] Clayton, Immigration & Asylum Law, 314

[56] H. Wray, Editorial (2015) J.I.A.N.L. 29(2), 128

[57] Wray, The MM Case and the Public Interest, 223

[58] M.B. Dembour, When Humans Become Migrants: Study of the European Court of Human Rights with an Inter-American Counterpoint (2015) O.U.P., 128

[59] E. Sinley, E. Fenelon and N. Mole, Family Reunification Requirements: A Barrier of Facilitator to Integration? United Kingdom Summary Report (2013), 5

[60] H. Toner, New Regulations Implementing Directive 2004/38 (2006) J.I.A.N.L. 20(3), 178

[61] Baiai v SSHD [2008] UKHL 53

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