INTRODUCTION
The first Article of this two part series ended with the Immigration Act 1971 (”the 1971 Act”), and the Immigration Rules made under the 1971 Act – HC 79[1], HC80[2], HC81[3], and HC 82[4], which all came into effect in 1973. Fiancés and fiancées are rarely mentioned in these two articles because the rules for them were so similar to the rules for spouses that there would have been a great deal of repetition.
This continuation article takes the evolution of immigration rules from the Immigration Act 1971 and the first Immigration Rules made under that Act through to December 2005. “Primary purpose” and other obstacles to marital union are discussed. It covers the development of “public funds”, the changes in maintenance and accommodation, concessions around unmarried and same sex couples and victims of domestic violence. It looks at the 1988 ban on polygamy and the current age rules for spouses from a Human Rights perspective, and also discusses developments in adoption and de facto adoption.
The Conservatives lost the February 1974 General Election. The new Labour Government did not repeal the 1971 Act. In February 1974 they were a minority Government, and even after the October 1974 General Election they had a majority of only 3. New legislation on immigration was not a priority for a beleaguered Government.
The rules Labour inherited (HC79, HC80, HC81, HC82) were that husbands were not to be admitted to join wives unless the husbands were Commonwealth citizens with a grandparent born in the United Kingdom and Islands[5], or
“refusal would be unreasonable because of the degree of hardship which, in the particular circumstances of the case, would be caused if the woman had to live outside the United Kingdom in order to be with her husband after marriage”[6].
Although a minority Government facing an early General Election, Labour still had the courage to recognize that the existing rules on husbands were sex discriminatory[7]. In August 1974 the Rules were changed to:
“A husband of a woman who is settled in the United Kingdom or is on the same occasion being admitted for settlement is himself to be admitted for settlement if he holds a current entry clearance granted to him for that purpose.”[8]
There was a requirement for accommodation and maintenance. Section 1(5) of the Immigration Act referred to men calling their wives and children, and so could not benefit a woman calling her husband.
The only reasons for refusal were criminal record, public good, or being subject to a deportation order.
There was similar provision for men in the United Kingdom who married women settled here.[9] The rules for men and for women were now identical, save that there was no provision for calling common law husbands.
In 1977 there were press stories about men paying women to marry them so the men could gain settlement in the United Kingdom. The publicity was immense and the Government rushed through changes in the immigration rules[10] to counter the hysteria. The new rules said that entry clearance (or leave to remain) was to be refused if there was reason to believe that the marriage was one of convenience entered into primarily to obtain admission to the UK with no intention that the parties should live together as man and wife; or that one of the parties no longer had any intention of living with the other as his or her spouse.
Instead of indefinite leave, a husband was now given leave for 12 months only. The legislation was so rushed that no provision was made in the Rules for the husband to be given indefinite leave after his 12 months leave.
An alternative explanation is that the omission was deliberate, to give the Secretary of State discretion whether to grant settlement to husbands. In Prajapati[11] the Home Office argued that the adjudicator did not have jurisdiction to review a discretion decision where there was no immigration rule involved. The judge ruled that if there was no immigration rule involved, the Secretary of State could not argue that the decision was in accordance with the Immigration rules, and so the adjudicator did have jurisdiction. [12]
Race and Immigration continued to be political issues. On a World In Action programme in January 1978 the Leader of the Opposition, Margaret Thatcher said
“….It is not easy to get clear figures from the Home Office about immigration, but there was a committee which looked at it and said that if we went on as we are, then by the end of the century there would be four million people of the New Commonwealth or Pakistan here. Now that is am awful lot[13] and I think it means that people are really rather afraid that this country might be swamped by people with a different culture. And, you know, the British character has done so much for democracy, for law, and done so much throughout the world, that there is a fear that it might be swamped, people are going to react and be rather hostile to those coming in.”[14]
The word “swamped” was used twice. Matthew Parris worked for Margaret Thatcher at the time and reports[15] that she received from the public 10,000 letters in just a few days. For a brief period the Conservatives shot up 9% in the opinion polls[16], only to slide back again.
The 1980 rules
The Conservatives benefited electorally from the “Winter of Discontent” of 1978/79, and won the 1979 General Election. The Statement of Changes in Immigration Rules 1980[17] consolidated the Immigration Rules from four documents into one document. The slightly different regimes for Commonwealth and non- Commonwealth citizens were harmonised, and there were completely new rules including the notorious “primary purpose” rule[18] (see below).
The general rule for dependants of students[19], persons admitted on work permits, for permit free employment, as businessmen and self employed persons, as persons of independent means, and as writers and artists was that wives and children under 18 should be admitted[20]. Maintenance and accommodation were mandatory.
For settlement cases, maintenance and accommodation were also necessary, except for those Commonwealth sponsors with right of abode or who were settled in the United Kingdom when the Immigration Act 1971 came into force[21]. The wording changed significantly, from
“able and willing to support and accommodate his dependants without recourse to public funds”[22]
to
“able and willing to maintain and accommodate his dependants without recourse to public funds in accommodation of his own or which he occupies himself”[23].
The Concise Oxford Dictionary says “support” can mean “provide with a home and the necessities of life”, so the old rule required the provision of a home and the provision of accommodation. “Maintain” does not imply the provision of accommodation but merely “provide with necessities for life or existence”, so coupling “maintain” to an accommodation requirement was not grammatically incorrect.
The accommodation requirement “in accommodation of his own or which he occupies himself” meant that shared accommodation or placing children with extended family was now not permitted. A sponsor could not park his children with friends and relations, and look for a larger property to rent or buy. He had to rent or buy the larger property before the family could comply with the immigration rules and be issued visas. The application queues abroad were sometimes years long. If the sponsor, living in a large empty property, took in tenants or licensees for financial reasons or just for company, he risked a visit to the property by Immigration Officers who would find the property occupied and so not available to the sponsor’s family. People in public housing had an additional problem, because they could not be given a larger property until their family had arrived, but the family could not have visas unless a suitable property was available. Entry Clearance Officers refused to accept a letter of intent from a public landlord because the wording of the rule meant that the accommodation had to be available before the visa could be issued. A lot of hardship was caused by this rule.
For a time many people feared that the rule meant that exclusive use of a bedroom in the parental home was not sufficient for a young couple, but this was eventually resolved[24].
The rule for common law wives changed slightly. Two sentences were added:
“A woman is not, however, to be admitted under this provision unless any previous marriage by either party has permanently broken down. Nor may she be admitted if the man has already been joined by his wife, or another woman admitted under this paragraph, whether or not the relationship still subsists.”
This affected polygamous wives also, unless their sponsor had the benefit of s1(5) of the 1971 Act.[25]
The rule for children was virtually unchanged. For “serious and compelling family or other considerations”[26] the consent of the Secretary of State was no longer required and the Entry Clearance Officer could make the decision locally.
Unmarried daughters aged 18-21 living as part of the family unit
still received “Special consideration”.[27]
The rules for widows widowers and parents were toughened, in that they now had to show that there were no
“other close relatives in their own country to turn to”.[28]
For distressed relatives there was an extension to include distressed adult sons and daughters, who had not previously been eligible.[29]
“Primary Purpose” begins
The words “primary purpose” had appeared in an earlier rule relating to students,
“”Attendance at the course must be the student’s primary purpose in coming to the United Kingdom”….”[30].
In Cmnd 3830 (1968) [31] for alien husbands where the wife had had to show
“(a) she was born in the United Kingdom and has since lived here, or
(b) she has, at least, substantial connections with this country and is well-established here
Provided also…. that the marriage is not one of convenience, entered into to obtain a lodgement here.”
This wording had been continued in Cmnd 4296 (February 1970)[32], but in HC 81[33] and HC 82[34] of 1973 had been changed to “hardship” in line with Commonwealth husbands. This was abolished in 1974.
Marriage of convenience had been reinstated in 1977 (see above).
The 1980 Rules incorporated elements of all the earlier attempts.
“50. The husband of a woman who is settled in the United Kingdom, or who is on the same occasion being admitted for settlement, is to be admitted if he holds a current entry clearance granted to him for that purpose. An entry clearance will be refused if the entry clearance officer has reason to believe
(a) that the marriage was one entered into primarily to obtain admission to the United Kingdom; or
(b) that one of the parties no longer has any intention of living permanently with the other as his or her spouse; or
(c) that the parties to the marriage have not met
Where the entry clearance officer has no reason to believe that any of (a) to (c) applies, an entry clearance will be issued provided that the wife is a citizen of the United Kingdom and Colonies who was born in the United Kingdom or one of whose parents was born there.”[35]
“Marriage of convenience” was replaced by “primary purpose”. This apparently minor drafting change had major consequences. A marriage of convenience is a sham marriage entered into with no intention of cohabitation. “Primary purpose” marriages were usually entered into with the intention of cohabitation. The selection of the wife may have been influenced by her ability to call the husband to the United Kingdom, but there was full intention of life long union.
There were also many cases where the marriage was arranged according to traditional marriage patterns, where the ability of the wife to call a husband to the UK was not a consideration. However, once the decisions about whom to marry were taken, it made sense for the couple to live in the United Kingdom. Often, the woman flatly refused to leave the conveniences of urban UK living to join her husband (and his mother[36]!). Entry clearance officers, understanding that residence in the UK was an essential element for these marriages, frequently thought these were primary purpose marriages.
The requirement that the woman or one of her parents must be born in the United Kingdom was another attempt to discriminate on grounds of race without appearing to be racist. It didn’t fool anyone. The requirement that the wife be British was also racist in effect.
Many women were simply not eligible to call a foreign husband. They went abroad to live with a husband, married someone based in the United Kingdom, or did not marry. Some brave (and presumably very patient) women challenged the immigration rule, and eventually won[37].
The Home Office was determined to make it difficult for women not born here to call spouses, but did not at this time attempt to stop men not born here and/or not British from calling spouses.
Another problem with this legislation was the EEC[38] dimension. Citizens of EEC countries living here were to be treated as our own citizens would be treated, and so the requirement for British
Citizenship and being born here or having a parent born here was almost certainly a breach of Article 53 of the Treaty of Rome
“Article 53. Member States shall not introduce any new restrictions on the right of establishment in their territories of nationals of other Member States, save as otherwise provided in this Treaty.”
It was also arguably a breach of Articles 8 and 12 of the European Convention on Human Rights and Fundamental Freedoms, to which Britain was a signatory.
The British Nationality Act 1981
The last major legislation on nationality had been the British Nationality Act 1948. There had been a British Nationality Act in 1958, two in 1964, and one in 1965, but these were relatively minor adjustments[39]. The British Nationality Act was a major restructuring, sharply dividing Citizens of the United Kingdom and Colonies (CUKCs) into British citizens and others. “Others” were British Overseas citizens, Citizens of a British Dependent Territory (each territory having a separate citizenship), Hong Kong, and people for whom Britain had a vestigial responsibility such as British protected persons[40] or British subjects without citizenship.
The British Nationality Act 1981 (“the 1981 Act”) built on the concept of “patrial”. Unusually, instead of immigration rights turning on nationality, nationality turned on Immigration rights, and in particular “right of abode”, which itself turned on “patriality”.
The definition of patriality[41] was
CUKCs by birth adoption naturalization or registration in the UK
CUKCs with a parent or grandparent who qualified as above
CUKCs who had been living in the UK for 5 years prior to the Immigration Act 1971 coming into force on 1 January 1973
Commonwealth citizens with a parent born in the UK
-wives of the above
For the British Nationality Act 1981 to be a “British citizen” you had to be
– born in the UK before 1 January 1983, or
– if born in the UK after 31 December 1982 born to a parent who was British or “settled”.
-Registered or naturalized as a CUKC[42] in the UK (not abroad).
-Born outside the UK to a British citizen parent after 31.12.82[43].
– Born outside the UK to a British citizen father, in wedlock.
Grandchildren born abroad could register under certain conditions, the principal condition being that prior to the applicant’s birth their British citizen parent had at some point spent 3 years in the UK.
There was a problem with the Command Paper HC 66 that came into force on 1 January 1983[44], in line with the commencement of the 1981 Act. The House of Commons disapproved HC 66. MPs who thought HC 66 too lenient combined with MPs thinking HC66 was too tough to defeat HC 66. HC 66 was replaced by HC 169[45].
HC 169 removed the Citizenship and birth requirements for sponsors, leaving primary purpose, intention to cohabit, the requirement to have met[46], and maintenance and accommodation[47]. The onus of proof changed from the Entry Clearance Officer having to prove primary purpose[48] to the parties having to prove a negative, that the marriage was not a primary purpose marriage[49].
For all dependants there was now a power for the Entry Clearance Officer or Immigration Officer to require a written undertaking to maintain and accommodate[50].
S1(5) of the 1971 Act had never protected women seeking to call husbands, so there was still sexual discrimination amongst people settled here on 31 December 1972. There was still sexual discrimination against women workers business people and students, who could not call a husband or children, unless the sponsor was an EEC national.
The rules for wives children fiancées parents, grandparents and dependant relatives were unchanged. The rule for fiancés changed in line with the rule for husbands.
It was also necessary to make Immigration Rules for children born in the United Kingdom who were not British at birth[51]. The child was exempt maintenance and accommodation requirements. The suggestion was that the child should apply for leave in line with his parent or parents. Without such leave, the child might be refused re-entry.
Equality in Misery
The Abdulaziz[52] judgement in May 1985 declared what everyone knew, which was that the Immigration Rules were sexually discriminatory. The Government had to pass new Immigration Rules that were not sexually discriminatory. HC 503[53] amended HC 169. Instead of leveling up, the Government leveled down, applying the primary purpose rule to wives as well as to husbands. The only people who did not have to worry about primary purpose were EEC nationals married to other EEC nationals and women married to men who had the benefit of s1 (5) of the 1971 Act. The requirement that the sponsor be British was dropped.
The Government failed to deal with some of the other sexually discriminatory issues within the Immigration Rules, such as the inability of women here as students, business people or on work permits to call husbands and children. Homosexual relationships did not fall within the immigration rules for a very long time, and admission of homosexual partners was an issue of discretion, which was usually not exercised[54].
Primary purpose cases became more frequent. Previously the requirement for the sponsor to be British and either born here or the child of someone born here had meant many people simply could not apply. When this was lifted in 1983, primary purpose became a running issue in many communities. The struggle from 1983 to 1997 over primary purpose generated many articles, and that struggle is only touched upon lightly here[55].
Fiancées had not previously needed entry clearances, but in the interests of equality they now needed visas.
On 8 November 1985 the Immigration Service set out an instruction “Applications from common law husbands and wives/ mistresses” setting out the circumstances in which such applications would be considered. I have been unable to obtain a copy. It confirmed a curious anomaly that there was no lawful way for a common law husband to enter, but if he could get here and survive undetected for long enough he could normally remain.
In December 1985 the Immigration Minister wrote to Max Madden M.P. about public funds
“We would not use this power [to refuse] if a person had become dependent on public funds for a short time through no fault of his own. Moreover, if a sponsor here is dependent on public funds the relevant questions will be whether extra funds were necessary to support the application.”[56]
In 1986 HC306[57] made it compulsory for both parties to a marriage to be aged 16 on arrival in the United Kingdom before entry clearance or leave to remain could be issued. This was inserted as Immigration Rule 1A.
The Immigration Act 1988
There had been a by-election in which the issue of polygamy had arisen. The number of cases was small, but the Conservatives pledged to end the immigration of polygamous wives. If they were to deal with all polygamous wives, they had the problem of sponsors with the benefit of s1 (5) of the 1971 Act. The Government argued that if people had not brought their families during the period 1973 to 1988 that they were unlikely to bring them. Section 1(5) was therefore repealed[58]. Some of these wives and widows had right of abode in the United Kingdom, so that was taken from them if they had not actually been to the United Kingdom at any time between 1973 and 1988[59].
If another wife or widow had been in the United Kingdom or had been granted entry clearance or certificate of entitlement in respect of the right of abode, no more wives from that marriage could be admitted to the United Kingdom[60].
No women were to be deported as a consequence of the Act, but a woman who sought to re-enter the United Kingdom would be refused re-entry if there were a wife already here or a wife who had been here[61].
Polygamous marriages included the first marriage which when entered into was only potentially polygamous[62]. The Act itself did not mention children of polygamous marriages, and did not strip them of the right of abode.
The accompanying Immigration Rules[63] prohibited entry clearances or certificates of entitlement to further wives if a wife had been admitted[64], or had been issued with entry clearance or visa[65]. The effect on children, other than those who were British citizens or had right of abode, was that they could not enter if their mother was not entering[66].
Some applications[67] were made to the European Court of Human Rights to challenge the ban on polygamy, but they were ruled inadmissible. I suspect an application made today might have more success, because of the changes in society since the early 1990s. Azarbaijan and Turkey are now members of the Council of Europe and appoint judges to the European Court of Human rights. There are many more Muslims in Europe now than there were then.
The preamble to the European Convention on Human Rights and Fundamental Freedoms[68] indicates a clear intention to have collective enforcement
“of certain of the rights stated in the Universal Declaration of Human Rights[69]”
of December 1948.
There is no suggestion in either document that polygamous marriages or polygamous families are any less valued than monogamous marriages and families.
A refusal to allow family unity in the United Kingdom is to some extent an interference with family life (Article 8). It is a hindrance to the right of people of marriageable age to marry and to found a family (Article 12), because if the family is geographically split, there is always one wife who is not being given the opportunity to start a child. It is also religious discrimination (Articles 9 and 14), because it only affects those whose religions allow polygamy and who wish to be part of a polygamous marriage.
At the time of the passing of the 1988 Act the statements by Ministers were that the Government was “opposed to polygamy”.
Article 8 reads
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of public disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Article 12 reads
“Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.”
The Government’s argument is presumably the protection of morals. Given that we only recognize a polygamous marriage if both parties to the marriage were domiciled in a country that permits polygamy, how can the UK law penalise people for doing something that in their own country is legal and moral?
I have very considerable doubts whether being “against polygamy” is a legitimate aim, given
- that there is such an effect upon certain religious groups (Muslims, Jews, some Christians in West Africa and Pakistan)
- The purpose of the ECHR as stated in the preamble.
The legislation was also disproportionate, in that it hit women who at the time of their marriage were the first and only wife, and who may not have had any realistic choice about their husband taking a subsequent wife. It hit people who were behaving perfectly properly in the morality and religion of their country at the time of marriage. Children, including children of first marriages, suddenly found that they were now unable to go to the UK.
Many women and children who had a right to enter the United Kingdom (right of abode) or a reasonable likelihood of being allowed to enter were they to apply, had that right or likelihood taken from them retrospectively.
What might have been proportionate was either to say that marriages entered into after the 1988 Act were to be so affected, or to give a time frame of perhaps 5 years for people who wanted to apply to make applications.
Perhaps someone will challenge the legislation. The ideal case would be a first wife or the child of a first wife. The worst provisions of the bar on polygamy are contained in the Immigration Rules rather than statute, and the courts have power to set an immigration rule aside.
In 1989 HC 388[70] was published. There was no change for spouses or children. Parents, grandparents and widows now had to be
“Wholly or mainly dependent upon sons or daughters in the United Kingdom “… and “…without other close relatives in their own country to turn to.[71]”
Both legs of this rule caused considerable difficulty to the courts[72], because of issues about whether dependency need be entirely financial and the importance of emotional and physical dependency, and whether the close relatives needed to be able and willing to support.
Paragraph 20[73] built on Paragraph 46 of HC 169 (see above) by saying that sponsorship declarations could be required, and that the Department of Social Security could recover from the sponsor any income support actually paid to support the person.
HC 251[74] was published in 1990. It made no changes to family immigration.
A Departmental Policy Paper DP 2/93[75] related to marriage and deportation policy and giving guidance on divorced and separated parents and common law relationships including those where the common law husband was liable to removal. If a common law husband could survive undetected for 2 years he could normally remain. DP 2/93 also dealt with marriages of convenience to EC[76] nationals. There was also a detailed policy relating to children.
HC 725[77] amended HC251 to provide
“A husband or wife or minor children accompanying a principal applicant may be included in an application for asylum. If the principal applicant is granted asylum any such dependants will be granted leave to enter or remain of the same duration.”[78]
HC 395 came out in 1994[79]. In HC 395 the definition of “a parent”[80]was changed to
- the stepfather of a child whose father is dead
- the stepmother of a child whose mother is dead
- the father as well as the mother of an illegitimate child where he is proved to be the father
- an adoptive parent, but only where a child was adopted in accordance with a decision taken by the competent administrative authority or court in a country whose adoption orders are recognized by the United Kingdom (except where an application for leave to enter or remain is made under paragraph 310-316);
- in the case of a child born in the United Kingdom who is not a British citizen, a person to whom there has been a genuine transfer of parental responsibility on the ground of the original parents’ inability to care for the child.
“Family member” in relation to an EEA national ”has the same meaning as in the 1994 EEA Order”[81], which was
- that national’s spouse
- a descendant of that national or his spouse who is under 21 years of age or is their dependant; and
- a dependent relative in the ascending line of the EEA national or his spouse[82].
EEA national students were restricted to their spouse and dependent children[83].
People with limited leave could bring a spouse and unmarried children under 18, but there was no provision for unmarried relationships. There was now provision for female students[84] and female workers and self employed women to call husbands and children[85].
A new category of entry was now possible, for people wishing to exercise rights of access to a child. The new rule was an inadequate response to the Berrehab[86] case, in that it allowed access visits. However, as the person was not allowed to work, be self employed, produce goods or provide services or claim public funds[87] it realistically only benefited people who could be financially helped by people here or who had significant means. The maximum length of stay was 12 months.
The Special Voucher Scheme from1968 (see Part One of this article) was still operating, but now came into the Immigration Rules[88]. There is no definition of “spouse or child”. The suggestion by Grant and Martin[89] that in practice “child” included unmarried and dependent children up to the age of 25 is confirmed by Diplomatic Service Procedures[90] on the UKVisas web site. Accommodation and maintenance are waived except for children over 25.
For family settlement, primary purpose was still with us. It was made explicit that where the wife could not come because the marriage was polygamous, her children could not come either[91].
It was still possible for someone in the UK temporarily to apply to remain on the basis of marriage. The rule relating to cohabitees was withdrawn from the Immigration Rules, apparently because the Home Office was intending to change it[92]. In the short term, the concession continued.
Unmarried daughters over 18 and under 21 were no longer mentioned as having “special consideration”[93], or at all.
The adoption rules got longer[94]. The child, fairly obviously, had to be under 18, had to be unmarried, not leading an independent life, has not formed an independent family unit, was adopted by some form of legal process, has lost or broken his ties with his family of origin and the adoption is not one of convenience arranged to facilitate his admission to or remaining in the United Kingdom[95].
Widows now had to be aged 65[96], when previously there was no age rule. For all parents and grandparents, the accommodation had to be “in accommodation which the sponsor owns or occupies exclusively[97]”.
On 5 October 1994 the Immigration Minister wrote[98] to Giles Shaw M.P. confirming that for accommodation purposes a couple who had a bedroom to themselves in a property that was not otherwise overcrowded would satisfy the rule. He also said “The question is whether additional recourse to public funds would be necessary on the applicant’s arrival here”
DP 4/95 was a Departmental paper dealing with the circumstances in which children could be removed.
On 2 October 1995 the Immigration Minister[99] confirmed to Max Madden MP that the previous policy of December 1985 was still current. The recent case of Islam Bibi[100] was being ignored by the Home Office and ECOs.
In February 1996 the Immigration Minister announced that applications to remain as heterosexual cohabitees would be refused as a matter of policy. DP 3/96 (March 1996) partially replaced DP 2/93. DP3/96 actually purported to cancel DP 2/93, but as DP 3/96 failed to make any provision at all for unmarried relationships in view of the new policy, a Tribunal[101] held that DP 2/93 was only cancelled for marriage cases but was still current for unmarried relationships.
DP 4/96 also came out in March 1996. It dealt with removal action involving children and divorced or separated parents. DP 5/96 was a policy paper dealing with children who had accumulated 10 years residence in the UK.
In 1996 HC 329[102] widened the definition of public funds to include attendance allowance, severe disablement allowance and disability living allowance.[103]
In 1996 Cmnd 3365[104] amended Paragraph 349 of HC 395 to say that families of failed asylum seekers who had their own independent claims for political asylum could be removed even if their appeals had not yet been heard[105].
In 1996 HC 31[106] “public funds” was widened again to include invalid care allowance, council tax benefit, disability working allowance, child benefit, and income based jobseeker’s allowance.[107]
Paragraph 349 of HC 395 was given a definition of children. “A child means a person who is under 18 years of age or who, in the absence of documentary evidence, appears to be under that age.[108]
Things can only get better?[109]
In May 1997 the Conservatives lost the General Election and the New Labour Government was elected. New Labour was elected on a Thursday, and on Monday Home Office Presenting Officers were requesting adjournments as the primary purpose rule was to be abolished and cases were being reviewed. HC26 (June 1997) formally abolished primary purpose[110]. The rule had already been weakened by concessions under the Conservatives whereby if the couple had been married for 5 years or had a child, primary purpose was waived. Many civil servants recognized that simply delaying people coming in was futile.
On 7 August 1997 Immigration Policy Directorate[111] wrote
“”only direct recourse to public funds by an applicant is unacceptable under the Immigration Rules…Indirect recourse-where an applicant may be maintained out of public funds paid to and intended for someone else- is not prohibited”.
On 13 October 1997[112] a concession on unmarried partners and same sex couples was announced.
On 21 November 1997 IND wrote to Humberside Law Centre[113] about more distant relations of EEA[114] sponsors. There was no dependency test for people who had lived under the same roof as the EEA sponsor or his/her spouse before coming to the United Kingdom, but otherwise a dependency of necessity had to be shown.
Command 3953[115] abolished the requirement for family members of EEA nationals to register with the police.
In July 1998 the Government White Paper Fairer Faster Firmer [116]announced a number of concessions and policy changes, most of which are outside the scope of this article. Widows, bereaved partners, and victims of domestic violence were allowed to apply to remain in the UK.
On 24 February 1999 the Immigration Minister announced a change in policy relating to children with long residence, whereby there was an assumption that a child who had 7 years continuous residence in the UK could remain in the UK with his family, thus amending DP 5/96.
In June 1999 the Immigration Minister announced a concession on victims of domestic violence. It was less helpful than the bold statement in Fairer Faster Firmer, because it toughened up the evidence requirements. The person fleeing their abusive partner was often reluctant to involve the police or a solicitor because doing that would destroy any possibility of a reconciliation. By the time they realized their marriage really was at an end, bruises had healed, injunctions were often not appropriate, and it was now very difficult to assemble the evidence to prove entitlement.
The Immigration and Asylum Act 1999 brought the concept of sham marriages. By s24[117], registrars who suspect a marriage is or will be if performed a sham marriage are required to notify the Home Office. A sham marriage is defined as a marriage entered into
“for the purpose of avoiding the effect of one or more provisions of the United Kingdom immigration law or the immigration rules”[118].
Section 113[119] dealt with people who had provided a sponsorship declaration to someone who claimed asylum and received support under s95. The money could be recovered through a complaint in the magistrates court.
Human Rights arrive
The Human Rights Act 1998 came into force on 2 October 2000. The full impact of the Act and the Convention will no doubt take years to work through. Age limits for family are clearly open to challenge, given the variety of limits that have been in force, including the special voucher scheme. It has been suggested that the requirement for relatives to live alone in the most exceptional compassionate circumstances is in breach of Article 8[120].
New Immigration Rules[121] were brought forward to try to make Home Office practices and rules compliant with the European Convention on Human Rights and Fundamental Freedoms.
“Parent” was expanded to include an adoptive parent where the UK recognized the adoption[122]. A child born in the United Kingdom who is not British and where there has been a genuine transfer of parental responsibility on the basis of the original parents’ inability to care for the child had its new carer recognized as a parent[123].
A new Paragraph 278[124] was inserted which simply replicates the polygamy provisions of the 1988 Act, and confirms that a marriage may be polygamous although at its inception neither party had any other spouse. Children of such polygamous marriages had a new Paragraph 296[125].
A new clause 6A was inserted
“ For the purposes of these Rules, a person is not to be regarded as having (or potentially having) recourse to public funds merely because he is (or will be) reliant in whole or in part on public funds provided to his sponsor, unless, as a result of his presence in the United Kingdom, the sponsor is (or would be) entitled to increased or additional public funds.”
In contrast, s113 of the 1999 Act was strengthened, by saying that failure to maintain an asylum seeker for whom you have given an undertaking
“may also be an offence under s105 of the Social Security Administration Act 1992 and/or under s 108 of the Immigration and Asylum Act 1999 if, as a consequence asylum support and/or income support is provided to or in respect of, that person.”[126]
Where spouses and children are being brought to the United
Kingdom the accommodation rules changed from accommodation
“of his own or which he occupies himself”[127]
to accommodation which the sponsor(s)
“own or occupy exclusively”.
Maintenance changed to “maintain adequately”[128]. The purpose of this change is not obvious. Cases were frequently refused on the grounds that the sponsor could not support his family to social security levels. For “adequate” to mean a higher standard than social security levels would be to imply that social security levels are not adequate, which would have political implications.
The Special Voucher Scheme became part of the Immigration Rules.[129]
The admission of spouses and children of refugees was brought into the rules. The spouses and children of recognized refugees do not require accommodation and maintenance[130], and entry clearance fees can be waived[131]. for refugee sponsors and sometimes for sponsors with exceptional leave.
A new set of rules children[132] of people with limited leave “seeking limited leave to enter or remain with a view to settlement” were brought in, more or less identical with the settlement rules.
A number of concessions were now brought into the Immigration Rules, including same sex and unmarried partners[133], bereaved spouses[134] and bereaved partners[135], children of fiancés/fiancées [136] and the admission of children for adoption[137]. The rules for people exercising access (now called contact) were revised to permit residence and work[138].
A number of other concessions, such as 10 year and 14-year residence and victims of domestic violence, were not included in the Immigration Rules.
The Nationality, Immigration and Asylum Act 2002 (“the NIA 2002) made it possible for children born abroad after 7 February 1961 and before 1 January 1983 to women who had been born in the UK to apply for registration as British citizens[139]. They went from being unable to apply to come to the UK as children because they were now all aged over 18 straight to being able to have British citizenship. The NIA 2002 did much more, but most of it is outside the scope of this article.
Cm 5597[140] (18 September 2002) provided that EEA nationals here with 5 year permits are to be regarded as present and settled in the UK even though they do not have indefinite leave.
HC 104[141] (26 November 2002) put the concession for victims of domestic violence into the Immigration Rules[142].
HC 538[143] said that in marriage and fiancé(e) cases the sponsor had to be 18 years old. This is an interference with Articles 8 and 12 of the ECHR. It is hard to see that there are grounds for the Government to interfere with a legitimate and genuine marriage, and this legislation is disproportionate[144] to whatever problem exists.
It also brought in a rule[145] covering married couples where the sponsor has right of abode or indefinite leave and the parties have been married for 4 years and have lived together continuously outside the UK. They would go straight to settlement without waiting 2 years. It brought in a new paragraph 289B to confirm that a victim of domestic violence may be granted indefinite leave if s/he meets each requirement of 289A, and 289C to say that the person is to be refused if they don’t meet each requirement.
HC 538 brought in a new Paragraph 309A for de facto adoptions[146] that said adoptive parents of a de facto adoption had to have been living abroad –and if 2 parents living abroad together- for at least 18 months, and have lived with the child abroad for 12 months, and must have assumed the role of the child’s parents for 18 months. In parallel with this they have to meet the accommodation and maintenance requirements! This is arguably a breach of articles 8 and 12 of the ECHR.
Command Paper 5829[147] made provision for children to enter the UK for adoption under the Hague Convention.
Command Paper 5949[148] extended the waiting period for an application for indefinite leave for a family member or victim of domestic violence to 2 years. It also prohibited consanguineous unmarried relationships[149]. It also said[150]that people would not be allowed to remain as spouses after marriage if they originally had leave of 6 months or less (other than people with fiancé(e) leave, obviously).
HC 164[151] brought in Immigration Rules for Armed Forces marriages and children, but not common law or same sex relationships. There are no accommodation and maintenance requirements. The same rules contain a definition of “dependant” should there be a mass influx of displaced persons, which definition is quite generous.
HC 164 now said that an applicant for entry clearance as a spouse or fiancé(e) also had to be 18 years old, a very clear flouting of Articles 8 and 12 of the ECHR (see above). It is hard to see how this can be defended on grounds of morals or prevention of crime. It is disproportionate to the evil seeking to be challenged.
HC 346 [152]amended the definition of public funds to delete some benefits that no longer existed.
HC 582[153] was a response to civil partnerships, and inserted “civil partnership” as an addition to spouse wherever “spouse” appeared.
Conclusion
This article ends in December 2005. So what has changed 1955-2005?
The ever-decreasing cost of foreign travel means that more people travel, and it is unlikely that this will change. Immigration of all sorts has created benefits and has created or exacerbated problems.
The “open door” for Commonwealth slammed shut in the 1960’s. Joining the EEC/EC/EU has opened another door from Europe.
Gender equality has arrived within immigration law if not yet fully within society, and the position of unmarried and same sex couples is vastly improved.
The Home Office is finding ways to bring in the people our economy needs, but I suspect has under estimated their propensity to bring in family and extended family. Although political asylum has had huge publicity, the numbers entering on work permits has in most years been equal or more. Will they bring partners and families? Of course they will.
New Labour appear to be following a policy of not allowing the Conservatives exclusive use of the race card, by policies such as s55 of the Nationality Immigration and Asylum Act 2002 and s9 of the Asylum and Immigration (Treatment of Claimants) Act 2004. I never thought to see a Labour Government using starvation and cold and separation of families as a policy.
The Human Rights Act 1998 has led to greater transparency in that concessions and practices are now often available in the Immigration Rules, Immigration Directorate Instructions, and Diplomatic Service Procedures. Entry Clearance Officers and Home Office staff give much more information than they used to, and are less prone to value judgments. As was seen over s55, the Human Rights Act has protected the weakest in society from the worst behavior of the New Labour government.
And the next 50 years? My guess is more migration of all types, both to and from the UK. The EU will have a managed migration policy, tighter internal controls, identify us by our eyeballs- and still there will be illegal immigration.
[1] HC 79Statement of Immigration Rules for Control on Entry Commonwealth Citizens 1973.
[2] HC 80 Statement of Immigration Rules for Control after Entry Commonwealth Citizens 1973.
[3] HC 81 Statement of Immigration Rules for Control on Entry EEC and Other Non-commonwealth Nationals 1973.
[4] HC 82 Statement of Immigration Rules for Control after Entry EEC and Other Non-commonwealth Nationals 1973.
[5] Paragraph 25(a) HC80 (1973).
[6] Paragraph 25(b) HC80 (1973).
[7]See below for an explanation of the law under HC 79, HC 80, HC 81 and HC 82.
[8] Cmnd 5715 (1974) Statement of Changes in Immigration Rules and Cmnd 5717 (5714) Statement of Changes in Immigration Rules.
[9] Cmnd 5715 (1974) Statement of Change in Immigration Rules for Control on Entry Commonwealth citizens, Cmnd 5716 (1974) Statement of Changes in Immigration Rules for Control after Entry Commonwealth citizens, Cmnd 5717and Cmnd 5718 (1974) dealt with EEC and other non-Commonwealth nationals.
[10] HC 238 (1977) Statement of Changes in Immigration Rules, HC 239, (1977) Statement of Changes in Immigration Rules, HC 240 (1977) Statement of Changes in Immigration Rules, and HC 241 (1977) Statement of Changes in Immigration Rules.
[11] [1981] Imm AR 199 QBD.
[12] See MacDonald 4th Edition18.49fn6 for detail, including wording missed out from the case report.
[13] The size of the minority ethnic population reported in the 2001 census was 4.6 million, or 7.9 per cent of the total population of the United Kingdom. National Statistics Online 19 September 2006.
[14] Transcript World In Action 27 January 1978.
[15] The Times 12 June 2004.
[16] Peter Kellner column on YouGov web site 1 February 2005.
[17] Statement of Changes in Immigration Rules HC 394 (1980).
[18] The primary purpose rule survived with changes until a New Labour Government was elected in 1997. The primary purpose rule was suspended within days.
[19] Paragraph 25 HC394 (1980).
[20] Paragraph 40 HC 394 (1980).
[21] Paragraph 42, HC 394 (1980); s1 (5) Immigration Act 1971. The wording of section 1(5) was
“The rules shall be so framed that Commonwealth citizens settled in the United Kingdom at the coming into force of this Act and their wives and children are not, by virtue of anything in the rules, any less free to come and go from the United Kingdom than if this Act had not been passed””.
[22] HC81 (1973) Paragraph 34.
[23] HC 394 Paragraph 42.
[24] See October 1994 and footnote 98.
[25] A polygamous marriage could only be recognised if at the time of marriage both parties are domiciled in the country where the marriage took place. A man who had the benefit of s1 (5) would almost certainly be domiciled here, and so could not enter into (further) polygamous marriages and have them recognised as valid for UK purposes.
[26] Paragraph 46(f) HC 394 (1980).
[27] Paragraph 47 HC 394 (1980).
[28] Paragraph 48 HC 394 (1980).
[29] Paragraph 48 HC 394 (1980).
[30] Paragraph 19 Cmnd 4298 Commonwealth Immigrants Acts 1962 and 1968: Instructions to Immigration Officers.
[31] Immigration Appeals Bill 1968 Aliens: Draft Instructions to Immigration Officers paragraph 43.
[32] Cmnd 4296 February 1970 ALIENS Instructions to Immigration Officers paragraph 43
[33] HC 81 Statement of Immigration Rules for Control on Entry EEC and Other Non-commonwealth Nationals 1973.
[34] HC 82 Statement of Immigration Rules for Control after Entry EEC and Other Non-commonwealth Nationals 1973.
[35] Paragraph 50 HC 394 (1980).
[36] In many societies men never leave home. Wives join the husband’s family on marriage, and the husband’s mother or grandmother, as ruler of the household, can make a wife’s life miserable.
[37] Abdulaziz, Cabales and Balkandali v. UK (1985) 7EHRR 451.
[38] The EEC (European Economic Community) has widened its purpose and membership and is currently called the European Community.
[39] Dealt with in the first article in this series Immigration and Nationality Law Vol. 20 No1 p21.
[40] The definitive work on British Citizenship is British Nationality Law by Laurie Fransman. The second edition was published in 1998.
[41] Immigration Act 1971 s2.
[42] Citizen of the United Kingdom and Colonies.
[43] Later changed by s.13 Nationality Immigration and Asylum Act 2002 to permit registration as a British Citizen if born to a British Citizen mother after 7 February 1961.
[44] HC 66 (1982) Statement of Changes in Immigration Rules.
[45] HC 169 (1983) Statement of Changes in Immigration Rules.
[46] Paragraph 54 of HC 169 (1983).
[47] Paragraph 46 of HC 169 (1983).
[48] HC 394 Paragraph 50 (a) see text above.
[49] HC 169 Paragraph 46(a) as amended by HC 503 paragraph 10 “that the marriage was not entered into primarily to obtain admission to the United Kingdom”.
[50] Paragraph 46 HC 169.
[51] HC 251 Paragraphs 61-67.and 133-137.
[52] Abdulaziz, Cabales and Balkandali v. UK (1985) 7EHRR 451.
[53] HC503 (August 1985) Statement of Changes in Immigration Rules.
[54] “Admission to pursue such relationships is therefore a matter of individual waiver of the Rules and is usually granted in exceptional compassionate circumstances, where one of the partners is seriously ill.” MacDonald’s Immigration Law and Practice 4th Edition (1995) p334. See also“Out and out: UK immigration law and the homosexual” by Mungo Bovey in Tolley’s Immigration and Nationality Volume 8 No2 1994 p61.
[55] The major articles in IANL describing the difficulties primary purpose was causing or grappling with evidence and law are listed below:
M. Imman Ali “Advice and assistance in Bangladesh: A Personal View” Vol1 No1 p2
M. Imman Ali “Dower/doweries in Bangladesh and primary purpose” Vol 1 No4 p125
Lawrence Grant “Applications by husbands wives and fiancé (e) s Vol.2 No2 p26
“Evidence in primary purpose appeals” (Phil Powell’s notes) Vol 4 No 2 p55
Phil Powell “Custom and Tradition in primary purpose cases: does the E.C.O. really know best?” Vol4 No3 p107
JCWI “Immigration and human rights: the UK’s breaches of the International Covenant on Civil and Political Rights” Vol 5 No2 p39
Rick Scannell “Primary Purpose: the end of judicial sympathy?” Vol 6 No 1 p3
David Webb “Categorisation problems in marriage applications” Vol 3 No2 p26
Edward Rees “Recent judicial developments on “primary purpose”” Vol 3 No4 p92
“Guidance on primary purpose cases” Vol 6 No4 p134
“Marriage cases and European Community Law” Vol6 No4
“Beyond Surinder Singh: Rights of residence for non-EEA Spouses Vol 12 No1 p27.
[56] Butterworths Immigration Law page D165.
[57] HC306 (1986) Statement of Changes in Immigration Rules.
[58] S 1 Immigration Act 1988.
[59] S 2 (1) Immigration Act 1988.
[60] S2 (2) Immigration Act 1988.
[61] S2(2) Immigration Act 1988.
[62] S2(6) Immigration Act 1988.
[63] HC 555 (1988) Statement of Changes in Immigration Rules.
[64] HC555 (1988) Paragraph 3.
[65] HC555 (1988) Paragraph 3.
[66] Paragraph 50 HC 169 (1983).
[67] 19628/92, 23860/94, 40083/98.
[68] The European Convention for the Protection of Human Rights and Fundamental Freedoms, adopted at Rome on 4 November 1950.
[69] Universal Declaration of Human Rights proclaimed by the General assembly of the United Nations on 10th December 1948.
[70] HC 388 (1989) Statement of Changes in Immigration Rules.
[71] Paragraph 56 HC 388 (1989).
[72] See R. v. Immigration Appeals Tribunal, ex parte Bastiampillai [1983] 2 All ER 844, Immigration Appeal Tribunal v. Swaran Singh [1987] Imm AR 563 CA, Ex p. Sayana Khatun [1989] Imm AR 482, QBD.
[73] Paragraph 20 HC388.
[74] HC 251 (1990) Statement of Changes in Immigration Rules.
[75] Accessible in Butterworths Immigration Law Section D and in full at (1993) I & N L&P Vol7, 100-102.
[77] HC 725 (1993) Statement of Changes in Immigration Rules.
[78] HC251 Paragraph 180O..
[79] HC 395 (1994) Immigration Rules.
[80] Paragraph 6 HC 395 (1994).
[81] HC 395 (1994) Paragraph 6. “the 1994 EEA Order” was the Immigration (European Economic Area) Order 1994 SI 1994 No 1895.
[82] Immigration (European Economic Area) Order 1994 SI 1994 No 1895 Paragraph 2.
[83] Immigration (European Economic Area) Order 1994 SI 1994 No 1895 Paragraph 9.
[84] HC 395 (1994) paragraphs 76-78.
[85] HC 395 paragraphs 194-196; 240-242; 271-273.
[86] Berrehab v. Netherlands 10730/84 (1988) 11 EHRR 322 ECtHR.
[87] HC 395 Paragraph 246.
[88] HC 395 (1994) Paragraphs 249-254.
[89] Grant and Martin “Immigration Law and Practice” (1982) Cobden Trust Page 46.
[90] Diplomatic Service Procedures-Entry Clearance Volume 1 Chapter 23 The Special Voucher Scheme www.ukvisas.gov.uk/.
[91] HC 395 (1994) Paragraph 296.
[92] Macdonald’s Immigration Law and Practice 4th Edition page 333.
[93] HC 395 Paragraph 297.
[94] HC 395 (1994) Paragraphs 310-0316.
[95] HC 395 (1994) Paragraph 310.
[96] HC 395 paragraph 317.
[97] HC 395 (1994) paragraph 317.
[98] Butterworths Immigration Law Page D165 .
[99] Butterworths Immigration Law Page D166.
[100] R. v. Islam Bibi [1995] Imm AR 157.
[101] Wilby (18380). It is suggested in Butterworths (footnote page D106) that Wilby was wrongly decided.
[102] HC 329 (1996) Statement of Changes in Immigration Rules.
[103] Paragraph 1 of HC 329 amended Paragraph6 of HC 395.
[104] Cm 3365 Statement of Changes in Immigration Rules.
[105] Cm 3365 Paragraph 19.
[106] HC 31 (1996) Statement of Changes in Immigration Rules.
[107] Paragraph 1 of HC 31 (1996).
[108] Paragraph 11 of HC 31.
[109] “Things can only get better” was New Labour’s theme tune during the 1997 General Election.
[110] HC 26 Paragraph 281,284,290and 293.
[111] Butterworths Immigration Law Page D166.
[112] Butterworths Immigration Law D171-D176.
[113] Butterworths Immigration Law Page D178.
[114] The European Economic Area is the EU plus Norway Iceland and Liechtenstein.
[115] Command 3953 (1998) Statement of Changes in Immigration Rules.
[116] Cmnd 4018 (July 1998) Paragraph 7.12
[117] Paragraph 24 Immigration and Asylum Act 1999.
[118] Immigration and Asylum Act 1999 s 24(5). There is a now a similar provision, s24A to deal with sham civil partnerships.
[119] S113 Immigration and Asylum Act 1999.
[120] MacDonald, 5th Edition (2001) p409.
[121] Command 4851 (2000) Statement of Changes in Immigration Rules.
[122] Inserted into HC 395 Paragraph 6.
[123] Inserted into HC 395 Paragraph 6.
[124] Paragraph 278 of HC 395 (as amended).
[125] Paragraph 296 of HC 395 (as amended).
[126] Paragraph 35 HC 395 (as amended).
[127] HC 394 Paragraph 42.
[128] Paragraph 298 (and others) in HC 395 (as amended).
[129] HC 395 (as amended) paragraphs 249-254.
[130] HC 395 (as amended) paragraphs 352A-E.
[131] R. v. Entry Clearance Officer, Addis Ababa, ex p. Jama (Zainab Ali) CO3338/1999.
[132] Paragraph 301 HC 395 (as amended).
[133] Paragraphs 295A-295L of HC 395 as amended.
[134] Paragraph 295M of HC 395 as amended.
[135] Paragraphs 295M-295O of HC 395 as amended.
[136] Paragraphs 303A-303F of HC 395 as amended .
[137] Paragraphs 310-316C of HC 395 as amended.
[138] Inserted into HC 395 Paragraphs 246-248F.
[139] s13 of NIA 2002 inserted a clause 4C in the British Nationality Act 1981.
[140] Command Paper 5597 (September 2002) Statement of Changes in Immigration Rules.
[141] HC 104 26 November 2002 Statement of Changes in Immigration Rules.
[142] HC 104 (2002) Paragraphs 289-289C.
[143] HC 538 (April 2003) Statement of Changes in Immigration Rules.
[144] Matthew 19:6 ”… What therefore God hath joined together, let not man put asunder.”.
[145] HC 395 Paragraph 281 (as amended).
[146] “de facto adoptions” were recognised in R. v. Immigration Appeal Tribunal ex p. Tohur Ali 1987 9 January QBD. Such children were sometimes admitted as “exclusion undesirable” cases instead.
[147] Command Paper 5829 May 2003 Statement of Changes in the Immigration Rules.
[148] Command Paper 5949 25 August 2003 Statement of Changes in Immigration Rules.
[149] Consanguineous marriages are not recognized anyway. This deals with consanguineous unmarried relationships Paragraph 295A(iii) HC 395.
[150] HC395 Paragraph 284.
[151] HC 164 Statement of Change in Immigration Rules December 2004.
[152] HC 346 Statement of Changes in Immigration Rules February 2005.
[153] HC 582 Statement of Changes in Immigration Rules October 2005.
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