Family law and immigration are two areas of the law that often overlap with one another. Immigration issues may arise and have significant impacts in the context of family law issues such as divorce, cohabitees (particularly those in religious-only or non-legally binding marriages), financial claims arising from religious-only marriages either under the Matrimonial Causes Act 1973 or under cohabitation law and child arrangement orders.
Before proceeding to the Illegal Migration Act 2023, there have been several other changes proposed by the government to take place in Spring 2024. Immigration matters can complicate a divorce in instances where one spouse’s immigration status is dependent on the other spouse. Such is the case where the spouse’s settlement status is based upon their marriage to a British citizen. If the immigrant spouse has already obtained a spouse visa or settlement, meaning they have their indefinite leave to remain (settlement or British nationality) then a divorce will not affect their immigration status. If instead the immigrant spouse only has a temporary spouse visa at the time of the divorce, meaning that the spouses were married for less than five years prior to applying for their indefinite leave to remain, then although a divorce will not automatically divest the spouse of their status, it can certainly cause speculation from the immigration authorities as to the bona fides of the marriage. Ultimately as long as the conditional marriage visa status spouse proves that despite the divorce, the marriage was entered into in good faith and not in an attempt to circumvent immigration rules, then a discretion can be exercised in the immigrant spouse’s favour. The only difference would be that it may take longer for the immigrant spouse to obtain indefinite leave to remain as the Home Office may grant discretionary leave to remain and this is a longer route under immigration rules than the spousal visa route in five years towards settlement.
In cases where one spouse’s immigration status is dependent on the other spouse’s visa, then the spouse with the derivative visa will lose their status when the divorce is finalised. They would need to apply for another type of leave to remain in the UK, or leave the UK to avoid immigration authorities taking action to remove them.
Another area of concern is child arrangement issues. Undocumented parents often worry about their rights and protections when it comes to a contested child proceedings over their child when the other parent is settled in the UK. The main factor that courts consider when determining child arrangement is what is in the “best interest” of the child. There are many considerations involved in making this determination such as each parent’s ability to provide a stable home environment, their mental and physical health, and the wishes of the child once they are old enough to make a reasonable decision. Although a parent’s immigration status in itself would not affect child arrangements, deportation or administrative removal would be a consideration that a court would most likely factor into a child arrangement determination since it would have a direct effect on the child’s life.
Family law practitioners may also find themselves dealing with clients in religious-only marriages because many immigrants cannot comply with a civil registration of their marriage due to their perilous immigration status. If they have become overstayers or entered the UK clandestinely then, it can be very problematical for them. It means that they enter into religious ceremonies and this is quite common within the immigrant ethnic community and they only approach to legalise their immigration status once they qualify under the immigration rules or make an application outside the rules. Sometimes, these immigrant applicants remain for years in such relationships and encounter matrimonial issues. It is at this stage, they may consult a family law practitioner to either make a financial claim or make formal child arrangements for contact or residency and also consult an immigration practitioner to try to secure their immigration status.
Another issue that may arise is the different types of relationships that families are in and the types of agreement they may have and the visas required: for example, unmarried partners (unmarried partner visa), civil partners (civil partnership visa), fiancé/fiancée (fiancé fiancée visa), husband and wife (spouse visa).
Family and Dependant Visas
It is really important to understand and briefly outline some of the changes that are taking place in Spring 2024 relating to family members. Many are concerned and it is equally important for family law practitioners/applicants to be aware of these changes taking place and remain informed and/or refer clients/applicants to the appropriate immigration law practitioners. Some family law practitioners will have clients in the middle of divorce proceedings and preparing to bring in their partners/spouses and will face these new changes in immigration rules.
While social care workers will not be permitted to bring dependents to the UK from Spring 2024, there was no announcement regarding limitations on dependents for Skilled Workers or Global Business Mobility Routes (https://www.gov.uk/guidance/immigration-rules/immigration-rules-appendix-global-business-mobility-routes).
However, the increase in the minimum income threshold for Appendix FM Family members (https://www.gov.uk/guidance/immigration-rules/immigration-rules-appendix-fm-family-members) from £18,600 to £38,700 will introduce a financial barrier for many British citizens, or those settled in the UK, seeking to sponsor a spouse, partner or fiancé.
According to the Migration Observatory, just under 70% of British employees working in the UK earned less than the new income threshold in 2023 and the increased income threshold will disproportionately impact certain demographic groups. Specifically, while approximately 60% of men earn less than the new income requirement, this percentage rises to over 75% for women. Moreover, nearly all part-time employees earn below the threshold, effectively restricting the ability of migrant dependents to reside in the UK to full-time workers.
Recalling the Supreme Court’s judgment in MM (Lebanon) [2017] UKSC 10, the increase in the partner visa minimum income requirement is arguably incompatible with Article 8 of the European Convention on Human Rights and will, no doubt, be subject to legal challenge. However, more immediately, applicants who fear that they may not be able to satisfy the new financial requirement may wish to consider applying for their spouse, partner or fiancé to join them before the new income requirement is introduced in “Spring 2024”.
Illegal Migration Act (‘IMA’) 2023
The Illegal Migration Bill (‘IMA’) was announced on 8 March 2023 and it aimed to deal with challenges relating to the UK’s asylum process. This mainly related to migrants coming on small boats on the English Channel. The Bill attracted a lot of criticism from various rights groups as it was not the subject of public consultation. Many family law practitioners will come across clients that have immigration issues outstanding and are also in need of family law advice for example, in relation to marital relationship breakdown, child arrangement issues if they are in a relationship with a settled person in the UK. Therefore, it is important to understand the operation of the IMA, at least the basics and a referral to a specialist immigration practitioner may be necessary.
It is really important to address the concerns raised by the Law Society and their view was:
‘We are concerned that the Act may be incompatible with our international obligations under the European Court of Human Rights and the UN Refugee Convention. Breaching our international obligations undermines the rule of law. The Act will fundamentally reduce the oversight of our courts. More cases are likely to end up in Strasbourg, which puts the UK at increased legal liability. The Act contains limited safeguards that, coupled with restrictive timescales for appeal, are likely to diminish access to justice for everyone caught by its provisions.’ (https://www.lawsociety.org.uk/topics/immigration/illegal-migration-act ).
The above quote from the Law Society highlights some very serious concerns about this Act and the fact that it will be dealing with vulnerable group of asylum-seekers with limited safeguards. This was also the concern of many immigration law practitioners and NGO’s dealing with asylum seekers and refugees. Many of these asylum seekers flee persecution and have very little trust in the legal justice system. It can take a very long time for some of these vulnerable people to place their trust and come forward with their problems due to torture and suffering post-traumatic stress disorder. Therefore, specially trained lawyers and health practitioners are required to deal with such clients and be sensitive to understand the risk they face, if they are removed from the UK.
The Bill progressed into an Act, which was enforced on 20 July 2023. This article will outline the sections that have been enforced, those that have not, and where we are with Right to Remain and what we are doing in order to brace ourselves for the legal and non-legal consequences of the IMA as a whole.
The Purpose Behind the Illegal Migration Bill
The Illegal Migration Bill, or the ‘Stop the Boats Bill’, is one of the government’s latest measures to reduce ‘unlawful migration’ to the UK, following the introduction of the Rwanda Policy, the Nationality and Borders Act 2022, the prime minister’s statement on illegal migration and the recent introduction of the Streamlined Asylum Questionnaire.
The IMA was a proposal for a new law which aims to deter ‘unlawful migration’ by ‘irregular’ or ‘unsafe and illegal routes’: the Act aims to prevent people coming to the UK for example in the back of lorries or on small boats without having leave to enter the UK before or upon arrival.
Sections in force
The following sections of the IMA have been commenced:
- Section 12 — ‘Period for which persons may be detained’
- Sections 30–37 — ‘Entry, Settlement, and Citizenship’
- Sections 52 -‘Judges of First-tier Tribunal and Upper Tribunal’
- Sections 63–69 — General provisions (including definitions, and also sets out which sections of the Act have been commenced, etc)
Period for which persons may be detained
Amidst the vast sections of the IMA that are centred upon detention and have not been enforced, Section 12 of the Act was enforced on 28 September 2023.
This section greatly increases the Home Secretary’s power to detain a person who is, or appears to be, subject to the duty to remove. This is confusing, however, because the Section 2 duty to remove remains unenforced. This goes against the well-established Hardial Singh principles which generally stipulate that the Home Secretary can only detain a person in immigration detention if there is an intention to deport the individual in question, and that they can only be detained for a reasonable period, and there needs to be reasonable diligence surrounding that detention.
By contrast, Section 12 of the IMA allows for an extra period of detention, which is further explained (but not very well) in the explanatory notes. Limitations on the duty to detain apply to pregnant women and unaccompanied children — crucially the Home Secretary is not under a duty to detain them, but she has the discretion to. Challenges to the duty to detain can be made on a number of grounds. For instance, using the Hardial Singh principles (see below), or establishing human rights grounds (particularly Article 5 of the European Convention on Human Rights which concerns the right to liberty and security). Practically speaking, it is important to note that there not enough detention staff or centres to carry this out, at least not immediately. Section 11 of the IMA (which allows for the Home Secretary to use ‘any place’ to detain someone subject to deportation) has not been enforced, and we don’t know if it ever will be.
Entry, Settlement, and Citizenship
Sections 30–37 of the IMA are in force, and will impact people who arrived in the UK to seek asylum (through irregular means) on or after 7 March 2023.
The impact of these sections is as follows:
People who arrived in the UK on or after 7 March 2023 through irregular means (generally, this means without leave to enter/remain, and via a third country as opposed to directly) will not be eligible to receive leave to remain in the UK (this means refugee or other immigration status) and will ultimately be ineligible for British citizenship. A number of exceptions to these provisions exist, including a grant of limited leave to remain to survivors of modern slavery, and unaccompanied children. The rest of the exceptions to this are discretionary, meaning that the Home Secretary ‘may’ (not ‘must’) decide to grant a person leave to remain or enter in the UK.
With regard to ineligibility for British citizenship, the Home Secretary may determine that a person is not ineligible if this would contravene the UK’s human rights obligations under the European Convention of Human Rights (ECHR). We can therefore assume that submissions centred around how deprivation of British citizenship would breach a person’s ECHR rights (such as the right to life, family, freedom of assembly, etc) could be made. It is yet to be seen how these provisions will operate in practice and, as above.
Judges of the First-tier Tribunal and Upper Tribunal
Section 52 of the IMA allows for First-tier Tribunal judges to preside over hearings in the Upper Tribunal.
The Illegal Migration Act 2023 – Immigration Detention Powers
The Secretary of State for the Home Department (SSHD) already had extremely broad immigration detention powers. Immigration detention powers have no procedural safeguards or time limits. Instead, protection against arbitrary detention has been developed through the courts, first in the form of the Hardial Singh principles and later by the Lumba requirement to adhere to published policy. The key question is whether the government has achieved its aim.
The three main changes are:
- The removal of the Court’s role as primary decision-maker when applying the Hardial Singh principles.
- The codification of the ‘grace period’ of lawful detention to make arrangements for release.
- The introduction of new powers to detain which are not subject to judicial oversight for the first 28 days.
- HARDIAL SINGH PRINCIPLES AND THE PRIMARY DECISION-MAKER
The Hardial Singh principles are:
- (i) the Secretary of State must intend to deport the person and can only use the power to detain for that purpose;
- (ii) the deportee may only be detained for a period that is reasonable in all the circumstances;
- (iii) if, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period, he should not seek to exercise the power of detention;
- (iv) the Secretary of State should act with reasonable diligence and expedition to effect removal.
A key feature of the Hardial Singh principles is that the Court makes its own decision on what is reasonable, rather than simply reviewing the decision of Secretary of State for the Home Department (R(A(Somalia) v Secretary of State for the Home Department [2007] EWCA Civ 804). That approach is extremely unusual in public law; in other areas the Court reviews the decision using Wednesbury reasonableness with a greater or lesser level of intensity depending on the context (or proportionality where ECHR rights are involved).
Section 12 of the Illegal Migration Act 2023 attempts to reverse the decision in A(Somalia) and instead requires the Court to review the decision of the Secretary of State for the Home Department. For example, for detention pending deportation, it amends the Immigration Act 1971 to state:
A person liable to be detained under sub-paragraph (1), (2) or (3) may be detained for such period as, in the opinion of the Secretary of State, is reasonably necessary to enable the deportation order to be made, or the removal to be carried out.
On the face of it, this amounts to the most significant attempt to erode the power of the Courts and increase the scope of immigration detention since Belmarsh. However, there are reasons to think that in practice, the Courts will interpret Section 12 in a way which protects their role as primary decision-maker.
First, the Court’s role as primary decision-maker is necessary to ensure compliance with Article 5 ECHR. In Fardous v Secretary of State for the Home Department [2015] EWCA Civ 931 at §43, the Court of Appeal noted that:
“It is this objective approach of the court which reviews the evidence available at the time that removes any question that the period of detention can be viewed as arbitrary in terms of Article 5 of the European Convention on Human Rights.”.
Similarly, when the European Court of Human Rights determined that the lack of time limits for UK immigration detention did not breach Article 5 ECHR, it relied heavily on the robust application of the Hardial Singh principles by the domestic courts (JN v United Kingdom (37289/12).
Immigration detention practitioners have been able to largely ignore Article 5 ECHR in recent times because of the apparent equivalence between the Hardial Singh principles and the ECHR. However, it may be that the Illegal Migration Act 2023 has caused a divergence such that it is now necessary to argue that detention is in breach of Article 5 ECHR even if it does not breach domestic law.
Section 1(5) of the Act attempts to protect the Act from this kind of attack by excluding the operation of interpretative duty in Section 3 of the Human Rights Act 1998. Fortunately, it is not yet in force (as at time of publication) and therefore arguments of this nature can proceed. Even if it is brought into force, it may still be possible to argue that Section 3 of the Human Rights Act 1998, as a constitutional statute, can be used to read-down Section 1(5) of the IMA.
Second, the Courts may choose to interpret Section 12 in such a way that they preserve their role as primary decision-maker. One way of understanding the Hardial Singh principles, is that they are effectively implied statutory conditions for lawful detention similar to the explicit statutory conditions contained in the Police and Criminal Evidence Act 1984. The basis for them being implied into legislation is the principle of legality; unless Parliament has explicitly legislated to authorise ‘unreasonable’ administrative detention then the Court will assume that it has not done so. On this view, judicial acknowledgment of the Hardial Singh principles is simply identification of implicit limits on the power to detain.
If the Hardial Singh principles are implied statutory conditions for lawful detention, then the Court must objectively determine whether they are fulfilled in the same way as they do for police detention. For example, for police detention, the Court will determine for itself whether a police officer had an objectively reasonable belief that the suspect is guilty of an offence (see the adapted Castorina questions in Parker v Chief Constable of Essex Police [2017] EWHC 2140 (QB) approved by the Court of Appeal in Parker v Chief Constable of Essex Police [2018] EWCA Civ 2788; [2019] 1 WLR 2238 at §59). In the immigration detention context, it is for the Court of determine whether the Secretary of State for the Home Department’s opinion about the prospect of removal within a reasonable time is objectively reasonable. In doing so, it will effectively be following the A(Somalia) approach.
Finally, it may be that the exact legal approach taken by the Court makes less difference in practice that first appears. When applying the Hardial Singh principles, the Court already defers to the view of the Secretary of State for the Home Department where appropriate, for example on the progress of negotiations with a foreign state to issue an emergency travel document. It does so in much the same way it defers to the executive where appropriate when applying Wednesbury unreasonableness with a sliding scale of intensity. It may be that in practice, even if the Courts do not interpret the legislation in the manner proposed above.
(2) CODIFICATION OF THE ‘GRACE PERIOD’
The second significant change is the codification of the ‘grace period’ of lawful detention following the point at which detention is in breach of the Hardial Singh principles (identified in FM v Secretary of State for the Home Department [2011] EWCA Civ 807 at §60 and discussed in detail in R(AC(Algeria)) v Secretary of State for the Home Department [2020] EWCA Civ 36; [2020] 1 WLR 2893.
The concept of a ‘grace period’ of lawful detention to make arrangements for release has always been conceptually weak. It is difficult to understand why the existence of the Secretary of State for the Home Department’s powers to provide accommodation (in the Immigration and Asylum Act 1999 and Schedule 10 to the Immigration Act 2016) should increase the period during which he can lawfully detain someone. It is unfortunate that the government has now used legislation to protect itself from liability for unnecessary periods of detention.
For each different form of immigration detention, Section 12 now adds that:
The person may be detained under that sub-paragraph for such further period as, in the opinion of the Secretary of State, is reasonably necessary to enable such arrangements to be made for the person’s release as the Secretary of State considers to be appropriate.
As with the Hardial Singh principles, the legislation also tries to insulate the Secretary of State for the Home Department from liability by appearing to require the Courts to review her opinion of how long is reasonably necessary to make arrangements for release. This development is particularly problematic because the Secretary of State holds all the information about how long it will take her to arrange accommodation, which makes it difficult to challenge her opinion. Similar arguments to those discussed above can be made regarding this aspect of Section 12. The Courts can be persuaded to take a robust approach to the length of ‘grace periods’ in order to ensure that Article 5 ECHR is complied with.
Moreover, help may be at hand from the European Court of Human Rights. In ASK v United Kingdom (App No. 43556/20), the Court will decide whether the ‘grace period’ of detention created by the domestic courts is in compliance with Article 5 ECHR.
(3) NO JUDICIAL OVERSIGHT FOR 28 DAYS OF NEW DETENTION POWERS
Anyone subject to the new duty remove in Section 2 of the Illegal Migration Act 2023 is subject to detention under new powers contained in Section 11 of the Act. Section 13 of the Act attempts to exclude any judicial consideration of bail or the legality of detention for the first 28 days of detention under these new powers. At the time of publication, these new powers are not yet in force.
The exclusion of judicial oversight is extreme. The apparent effect of Section 13 is that:
- There cannot be a grant of bail by the FTT until after the end of 28 days of detention.
- There cannot be any judicial review of the SSHD’s decision to detain or refuse bail unless the SSHD acted in “bad faith” or a “procedurally defective way” that amounts to a “fundamental breach of the principles of justice”.
If that were to be the case, then the Secretary of State for the Home Department could detain someone in breach of the Hardial Singh principles or in breach of the Adults at Risk policy, without them being able to take any action against her.
First, it may be that immigration detention practitioners are forced to revert to making use of the writ of habeas corpus (Section 12(4) explicitly protects the availability of habeas corpus even in the first 28 days of detention). The use of habeas corpus came to an end in the immigration detention context after the Court of Appeal told practitioners to use judicial review instead in two judgments in the early 1990s (R v Secretary of State for the Home Department ex parte Cheblak [1991] 1 WLR 890, R v Secretary of State for the Home Department ex parte Muboyayi [1992] QB 244). However, many of the early immigration detention cases were brought using habeas corpus, including R v Governor of Durham Prison ex parte Hardial Singh [1984] 1 WLR 704 itself.
If Section 13 is enacted in due course, then there will be circumstances in which relief obtainable by habeas corpus is not obtainable by judicial review. Second, as with other attempts to oust the jurisdiction of the High Court, it may well be possible for the Court’s to read down the provisions in order to preserve their jurisdiction. In straightforward terms, the Courts might decide that a breach of the Hardial Singh principles is a procedural error which amounts to a “fundamental breach of the principles of justice”. Third, it will obviously be possible to challenge the operation of this aspect of the Act as incompatible with Article 5 ECHR, either by seeking to have these provisions read-down under Section 3 of the Human Rights Act 1998 or a declaration of incompatibility under Section 4.
IN SUMMARY
The amendments to the immigration rules, particularly relating to family members and income increase can prevent applicants below the threshold of £38,700 will not be able to bring their family members in the UK. Section 12 of the Illegal Migration Act 2023 came into force on 28 September 2023 and was published calling for a 28-day time limit on immigration detention. There will be plenty of challenges about the government’s attempts to expand immigration detention.
