Theresa May and punitive populism
June 14, 2012 — Comment
Written by Frances Webber
The home secretary’s latest immigration proposals will restrict migrants’ family life in the UK, make it contingent on income, language and integration tests and on continuing good behaviour.
On 10 June, the coalition’s latest attempt to redeem its rash election promise to reduce net migration to below 100,000 was unveiled on TV’s Andrew Marr show. Home secretary Theresa May’s long-trailed proposals to curtail family migration were presented to the TV audience first, and to parliament the following day. That was a good indication of the primary purpose of the proposals; despite the emphasis on parliament’s role in defending the great British public against foreign criminals and unelected judges, in reality May’s proposals are an exercise in punitive populism.
The proposals were prefaced by ritualistic (and false) claims that family immigration has not been regulated effectively for many years (in fact, the rules on family migration have always been strict and have got stricter year on year); that sham marriages have been widespread (an assertion supported by no evidence); and that there have not been rules in place to stop migrants becoming a burden on the taxpayer. In reality, for several decades the rules for family settlement have required proof that there will be no recourse to public funds, in the form of wage slips, employment contracts, P60s, bank statements and other evidence of means; at least a quarter of family visa applications are refused on this basis, and those subject to immigration control are in any case ineligible for means-tested benefits. During last year’s public consultation on family migration, the Immigration Law Practitioners’ Association (ILPA) asked the UK Border Agency (UKBA) for any evidence of migrant families having recourse to public funds: the response was ‘the information you seek is not currently available’. The same response was given to all ILPA’s questions on the evidential basis for the proposed changes. There is no evidence that the proposals will save a penny of public funds.
But there is no doubt that the changes will have a severe impact on family migration from the poorer parts of the world. From 9 July, anyone wanting to sponsor a partner to settle in the UK will need a minimum income of £18,600. If they have a child, the threshold will be £22,400. For every extra child, the threshold will rise by £2,400. The main effect of this new rule will be to prevent many young non-working or low-paid British women from migrant backgrounds from bringing husbands from the global south to the UK, because it is only the sponsor’s earnings, not the proposed migrant’s or the couple’s joint earnings, that will determine eligibility for family reunion. (Of course the rule will affect low-paid husbands seeking to bring wives, and civil partners too, but women’s caring roles and generally lower pay means that foreign husbands will be disproportionately affected.)
The current rules simply require new migrants to demonstrate that they will not need to have recourse to public funds, and in establishing financial independence the new migrant’s earning potential, job offers and extended family support are all taken into account. Additionally, there has been no minimum threshold income required, and couples who demonstrate that they can live on a very modest income, of around £8,000 a year (jobseekers’ allowance for a couple is under £6,000 a year), often living with relatives and paying no rent, are eligible to be together in the UK. Now, such thrift will count for nothing, as couples who can live without recourse to public funds but who don’t satisfy the government’s arbitrary income threshold, will be denied family reunion in the UK. The mendacious and inflammatory message that comes through is that migrant families are scroungers; the reality for the future is that financially independent but poor families, who are not good consumers, must remain separated from their UK-based parent or partner, or go elsewhere if they want to live together as a family.
The Statement of Intent published by UKBA on 13 June, together with the draft rules governing family migration, indicate that there will be another ‘family route’ for applicants who are unable to satisfy all the requirements of the rules, but it is not clear whether those falling short of the minimum income requirement can apply.
Other curbs on family migration in the draft rules include the following:
- The minimum probationary period for new spouses and partners will go up from two to five years. The (explicit) assumption is that a relationship which lasts for less than five years is not genuine, and separation within the period means removal of the foreign partner, regardless of fault, which encourages ‘mail-order bride’ effects – if you don’t like them you can get them sent back – and more immigration policing of couples’ bedrooms to check that relationships are subsisting.
- New guidance will be issued to caseworkers to help them identify sham marriages. Current rules require couples to demonstrate that their marriage is genuine (in that they intend to live together in a matrimonial relationship) before a visa is granted. Once again, the announcement suggests more intrusive immigration policing of couples, including late-night or early-morning enforcement visits.
- Anyone who wants to sponsor a dependent relative requiring care to come to the UK will have to show that they can look after their relative without recourse to public funds. Although the rule doesn’t say so, the idea is that social services assistance and NHS care should no longer be available for new settlers. The current rules, while preventing recourse to ‘public funds’, ie means-tested benefits, by those subject to immigration control, contain a residue of universalist values in that they do not exclude migrants coming for settlement from health and social services care. That last glimmer of social solidarity is to be extinguished, and although UK-based sponsors will of course continue to pay tax and national insurance which funds these services, the government wants them to have to pay for private health insurance and private care for their elderly relatives.
- Aunts, uncles and cousins will no longer be eligible for family reunion, which will be restricted to spouses and partners, children, siblings, parents and grandparents. The current rules allow the admission of extended family members to join UK-based relatives only if they would otherwise be living alone in the most exceptional compassionate circumstances – so this change will have virtually no effect on numbers but will be devastating to those very vulnerable people affected.
- Applicants for settlement in the UK will, from October 2013, have to pass the ‘life in the UK’ test and an intermediate English test. The language and life tests were brought in as requirements for citizenship a decade ago but have since been applied earlier and earlier, and a language test was applied to spouses and partners seeking entry in October 2010. The language test is now to be made more difficult, and both tests will be applied across the board to applicants for settlement. They do not, of course, apply to European settlers, who may never learn English language, history or customs, and its message is a neo-colonial, assimilationist one: be like us or you can’t stay.
- The right of appeal for people denied a visa for a family visit will be removed. The Major government first tried to remove this right in 1993, when other appeals against refusal of visit visas were abolished, but a vociferous campaign stopped the plan. The Crime and Courts Bill will remove the appeal right; in the meantime new rules will restrict appeal rights to those visiting family members who are settled in the UK, or are refugees or on humanitarian leave. The abolition of appeal rights always leads to worse initial decisions. Those seeking to challenge visa refusals will have to seek judicial review, which is very expensive and slow, or make repeated applications (repeatedly paying exorbitant and unreturnable fees) in the hope of changing visa officers’ minds.
The deportation drive continues
In addition, new rules will stipulate that ‘serious criminals’ cannot use family life rights to avoid deportation. This has been a key objective of Tory policy since before the 2010 election, demonstrating the party’s commitment to protecting the British public from foreign criminals and to stand up to the foreign human rights judges and their British collaborators. The relentless campaign by the Right and the tabloids has led to a situation where no politicians and very few judges are prepared publicly to support human rights for foreign offenders. The provision in Labour’s 2007 UK Borders Act that the deportation of foreign criminals is in the public interest has been used by Court of Appeal judges to uphold deportations of fully rehabilitated foreign offenders with strong family ties here.
May’s claim that ‘for too long, the courts have been left to decide cases under Article 8 without the view of Parliament’ is the justification for a new, detailed set of rules which are designed to tell judges when an offender’s family life can be considered in a decision to deport, and when it can’t. Deportation of an offender who has served a 12-month sentence would, the proposals state, normally be justified regardless of his or her family ties in the UK, as will be deportation of one who has served a shorter sentence but caused ‘serious harm’, or a persistent offender. The draft rules stipulate that to avoid deportation, these offenders would have to have twenty years’ residence in the UK, fifteen years’ residence and a partner who cannot go elsewhere, or a child or children who had lived here for at least seven years who can’t be expected to live abroad. Offenders sentenced to four years or more should expect to be deported regardless of such ties.
Apart from being extraordinarily punitive, rules such as these cut across judges’ task of performing the judicial exercise required under the Human Rights Act – which parliament has told them to interpret – balancing the wider public interest such as preventing crime and upholding the rights and safety of others, against the rights and needs of all the members of an offender’s family, including innocent spouses and children. The balancing exercise requires careful consideration of each case – not the blanket approach of the proposed rules.
Although UK judges have been coming into line with the Tory Right and have become more sparing with Article 8 rights for foreign offenders (largely to avoid a barrage of tabloid hysteria), there is still the odd case, seized on by the media, where family or private life rights are ruled to outweigh the need for deportation, particularly where offenders have children in school here. The Home Office said that 185 foreign prisoners successfully cited Article 8 in the past year (although the figure is likely to include immigration offenders); the Joint Council for the Welfare of Immigrants (JCWI) pointed out that under 8 per cent succeeded in avoiding deportation by relying on their UK family life. But although May knows she cannot get rid of every single foreign offender, she clearly intends to get the numbers of those not deported down to single figures with these new rules. She has warned judges that if they continue to allow foreign criminals to stay, she will legislate to remove their discretion entirely. This would, of course, be contrary both to the Human Rights Act and to the European Convention on Human Rights, provoking a potential conflict with the Council of Europe (which runs the Convention and its enforcement machinery). But May and justice secretary Ken Clarke have prepared the ground in Europe with their demand that national authorities are given more leeway to decide when family life rights should be granted or withheld.
The prime minister paints himself as a defender of families and family values. In a speech last summer he said: ‘So: from here on I want a family test applied to all domestic policy… If it hurts families, if it undermines commitment, if it tramples over the values that keeps people together, or stops families from being together, then we shouldn‘t do it.’ Clearly he was referring only to all-British families with no foreign members.
The Institute of Race Relations is precluded from expressing a corporate view: any opinions expressed are therefore those of the authors.