Regulating Marriage Migration into the UK

A Stranger in the Home

Helena Wray

• Publisher: Routledge
• Year: 2016
• eBook ISBN: 9781317068792
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Marriage migration is a controversial and problematic issue in the UK as elsewhere in Europe. This timely analysis is a comprehensive examination of the regulation of marriage migration into the UK. With international relevance, the book uses the analysis to examine the relationship between government priorities and the dynamics of transnational family life. The book is one of the first to scrutinise the control of UK marriage migration after 1997 and explores the dilemmas faced by the post-1997 government in managing this form of migration in a changed domestic and international environment. Using high-quality sources from across the political spectrum, it analyses regulatory decisions made by government, the judiciary and the visa service, and suggests that there is an unofficial and unarticulated hierarchy predicated on assumptions and beliefs about acceptable marriages. Finally, the book establishes a principled basis for the future regulation of marriage migration.

Chapter 1
Introduction: The ‘Problem’ of Marriage Migration

This book is concerned with the regulation of marriage migration by the British state from 1962 until 2010.1 It analyses decisions made by three institutions: the legislature, the judiciary and the entry clearance service (later the visa service). It identifies the assumptions and beliefs upon which decisions were predicated and which, it is argued, combined to create an informal and unarticulated hierarchy of acceptable marriages for the purposes of regulation. This volume finds that these assumptions and beliefs were, in the main, consistently held across all three institutions for much of the period between 1962 and 1997. After 1997, decisions showed more fluidity and ambivalence.

Marriage migration invokes numerous anxieties, strategies and ambitions and has been seen as problematic and controversial in the UK as elsewhere in Europe.2 From a government perspective, marriage migration (and family migration in general) permits the entry of migrants who would not otherwise be admitted and may even be primary targets for refusal. It directly engages the interests of UK residents in ways that may conflict with broader political priorities. Such conflicts are not unusual, but the critical factor here is that intimate and defining relationships are pitched against macro policy decisions. The outcome is that, faced with undesired marriage migration, governments must make a stark choice: to accept the unwanted stranger or to reject the UK-resident spouse, making him or her into a stranger unable to enjoy his or her most intimate relationship in their own home. Regulating marriage migration therefore involves weighing up the claims of the UK resident and the desirability or otherwise of the migrant. The result is that marriage migrants are implicitly ranked hierarchically, with their status decided according to a range of fluctuating characteristics. Charting these fluctuations over time is a major theme of this book and provides insight into the changing ways in which difference was conceptualised and how some UK residents might more easily be designated as ‘outsiders’.

Who is a Marriage Migrant?

In 1962, when the main part of this book begins, those applying to enter were usually seeking family reunification, to bring together families that had already been established. They were typically the spouses of recent immigrants from New Commonwealth countries. As labour migration diminished and the families of migrants matured, there was a switch to family formation, the creation of a new family unit. Applicants were more often men and women engaged or married to those who had travelled to the UK as children or who had been born there. The overwhelming focus was on applicants from the Indian sub-continent entering arranged marriages, although other nationalities, including those from the Caribbean, also featured.

In the post-1997 period, immigration to the UK increased and diversified. Marriage migration to the UK remained an important source of migrants, reflecting the position of family migration as the dominant mode of legal entry into Europe (Kofman 2004: 243). However, it declined proportionately as a source of long-term entry over the period, presumably due to increases elsewhere (see Charsley 2011). It increased numerically until 2006, after which it declined sharply. Between 1999 and 2002, it hovered around 30,000 per year, climbing to just 47,500 in 2006, before falling back to just over 31,000 in 2009.3

Some change in the composition of marriage migrants is observable. In 1999, 38.45 per cent of all marriage-related visas were issued on the Indian sub-continent. In 2004, it was still 38.41 per cent, but by 2009, it had fallen to 32.31 per cent. Other regions showed little change. For example, the figures for the Americas in the same years were 14.20 per cent in 1999, 11.04 per cent in 2004 and 13.64 per cent in 2009. However, there was a large increase in the proportion of migrants entering from the rest of Asia and the Middle East (14.07 per cent in 1999, 19.42 per cent in 2004 and 24.78 per cent in 2009) and, to a lesser extent, Africa (13.79 per cent in 1999, 15.04 per cent in 2004 and 17.85 per cent in 2009).4 The Indian sub-continent has declined, relatively speaking, as a source of marriage migration, although it remains the single largest group.

These figures are only a very approximate guide. They cannot capture many important permutations, for example, changes in the composition and numbers of migrants already in the UK who remain after marriage. The immigration statistics (Home Office 2010a: 87-9) suggest that significant numbers of marriage migrants who achieve settlement did not enter in that capacity. In 2008, for example, 57,390 spouses obtained settlement, although only 41,330 of these had entered on the basis of marriage to a British national or resident. A significant proportion of those settling therefore entered as spouses of workers or students and gained settlement with their spouse or in an unrelated capacity and switched. Other spouses will have entered outside the main immigration system, for example, as the family member of a European Economic Area (EEA) national or through human rights or refugee claims. EEA family members (including spouses but also children and other relatives) in particular became an important source of non-European migrants. In 2002/3, 20,000 family permits were issued by entry clearance posts (excluding those issued within the UK). By 2004/5, this had increased to nearly 25,000.5 The 2009 immigration statistics (Home Office 2010b: Table 4b) show that 25,015 non-EEA nationals were recognised as having the right to reside in the UK in 2009. In 2007, 22,730 family permits were issued, falling to just under 19,000 by 2009 (Home Office 2010a: 54). Not all entrants will have been spouses, but the number is likely to be a significant proportion. The distribution of these EEA family members is quite different from those entering under domestic law, perhaps reflecting migratory patterns elsewhere in Europe. The largest single national group, comprising more than 4,000 entrants, was from Brazil. While India, Pakistan and Bangladesh had 3,880 issues between them, 15.51 per cent of the total number, this was a smaller proportion than under national law, although it was still significant.

Thus, while a complete picture is not available, it seems that South Asia remained an important source of marriage migrants. The persistence of South Asian marriage migration, which is reflected in the continuing academic interest in that area (for example, Charsley 2006, Ballard 2008 and Shah 2011), may explain why, while attention partially switched post-1997 to short-term entrants and irregular migrants who marry in the UK, towards the end of the period discussed in this book there was a renewed focus on cultural practice and international South Asian arranged marriages. However, there are significant numbers of marriage migrants who are not easily detected through a focus on those who enter because of their relationship with a British resident or national and who are arguably under-researched. The Philippines, for example, are now the third largest national group obtaining marriage-related settlement, behind only India and Pakistan (Charsley 2011). Much of this is male, suggesting a link with the recruitment of female Philippine nurses and domestic labour. Marriage migration from developed countries and which is mainly white has always existed but is rarely discussed, let alone problematised. South Africans (believed to be mainly white) were the fifth largest and US citizens the seventh largest group of nationals acquiring settlement through marriage (Charsley 2011).

In the main, marriage migrants appear to be female. In 1999, 66.54 per cent, in 2004, 66.82 per cent and, in 2009, 68.01 per cent of those granted entry for marriage were women, so this trend does not appear to be changing.6 Detailed breakdown is available only pre-2003 in South Asia, but these show that fewer men applied and more men proportionately were refused (Home Office 2003: 42). These gender ratios may not reflect the entire picture, as the observation above about the Philippines suggests. While the global figures suggest that female marriage migrants from the Indian sub-continent still outnumber males by a significant margin, Charsley (2011), looking at the wider category of marriage-related settlement, found a much more evenly balanced gender distribution from the region. It seems likely that more men than women entered through non-marriage routes and then gained leave to remain or entered as the spouses of workers or students (see Chapters 7 and 8 for a discussion of attempts to control switching).

Marriage migrants are well represented among those who settle long term in the UK. While they only represented 12 per cent of non-visit visas granted in 2004, 34 per cent of those who achieved settlement in 2009 had entered as family members.7 However, a substantial proportion of marriage migrants either leave the UK or remain without leave. Of family migrants who entered in 2004, only 55 per cent had achieved settlement after five years, while 63 per cent were still lawfully present (Achato, Eaton and Jones 2010: 5-6).

It therefore seems that there is not much known about marriage migrants and that headline figures and common conceptions may be misleading. Very poor migrants and sponsors are likely to be under-represented as they will be unable to meet economic criteria, although some may enter through the spouse reunification provisions for refugees or, more rarely, through an Article 8 claim. Similarly, those originating from regions where record keeping is poor may find it difficult to meet the necessary formalities (see Chapters 5 and 9). Some bias towards the more prosperous and educated may therefore be expected.

Marriage Migrants and the Law

The analyses employed in this book focus on that part of UK immigration law which, from 1962 until 2010, controlled the admission of the spouses of British nationals or permanent UK residents. In these cases, the entering spouse usually becomes a permanent resident and it is this feature that has particularly provoked anxiety and stringent regulation.

Marriage migration has often been seen as problematic and different means have been used to control it. Those specific to marriage are analysed in detail in later chapters. Others, such as financial criteria, which apply to many types of immigrant, are considered only so far as they specifically affect marriage migration. Common reasons for refusal have evolved alongside the circumstances of applicants. The absence of formal documentation rationalised the rejection of many claims for reunification of families originating from the Indian sub-continent. The primary purpose rule (see Sachdeva 1993 and Chapters 4 and 5 for a full account) was used mainly against male applicants seeking to join the daughters of first-generation immigrants. Following abolition of that rule in 1997, there were fewer refusals, although some applicants were denied entry on the grounds that the parties did not intend to live together or could not establish a valid marriage. After 2003, and before being severely frustrated by the courts, the requirement to leave the UK and obtain entry clearance became a major way to control short-term and irregular migrants who relied on marriage to found a claim to remain (see Chapters 7 and 8). Most recently, measures aimed at preventing forced marriages have reduced some forms of culturally unacceptable immigration (see Chapter 7). These methods of control have been enabled, executed and supported or, more rarely, challenged by the institutions examined here: Parliament, the judiciary and the entry clearance or visa service.

Modern regulation of immigration is to be found primarily in the Immigration Rules made by the Home Secretary under s. 3(2) Immigration Act 1971. Prior to this Act, entry was regulated either under the Aliens Restrictions Acts 1914 and 1919 (and prior to that the Aliens Act 1905) or under the Commonwealth Immigrants Acts 1962 and 1968. These statutes were supplemented by Aliens Act Orders or instructions to officials. The characteristics of the regime prior to the 1971 Act are discussed in Chapter 2.

Revisions to the Immigration Rules are laid before Parliament and become law unless they are subject to negative resolution of either Chamber, a very rare occurrence. The current provisions affecting marriage are found in Part 8 (paras 277-95) of the current Immigration Rules (HC 395). These regulate the admission (or extension of leave) of spouses and civil partners (who are now treated identically), unmarried partners and fiancé(e)s. There are a number of requirements that applicants must meet, including the following:

1. The UK sponsor must be present and settled in the UK or admitted for settlement on the same occasion (para. 281).8 Non-national residents have, since 1985, been treated identically to British nationals.

2. In marriage applications, the applicant must be ‘married to’ or the ‘civil partner’ of the sponsor (para. 281(i)(a)). For those educated in European bureaucratic norms, proving this through the presentation of a marriage certificate is usually relatively straightforward. However, those who marry using non-formal or customary ceremonies, which are common in many regions, must use evidence of a different kind and may find that the validity of the marriage is not accepted. These issues are discussed further in Chapters 5 and 9.

3. Since 1988, only one spouse to a polygamous marriage has been permitted to enter (para. 278). An application will be refused if the other spouse has ever been in the UK, has a certificate of entitlement to the right of abode or has entry clearance as a spouse. The Rules do not specify that the previous entry must have been as a spouse, although the Immigration Directorate Instructions state that presence as a visitor, illegal entrant or on temporary admission does not count for these purposes.9

4. Applicants for entry must obtain entry clearance before arrival under paras 281, 290 and 295. Entry clearance for Commonwealth nationals seeking admission as family members effectively became compulsory in 1979 and its effects are examined in Chapters 5 and 9. Those seeking leave to remain in the UK without entry clearance for marriage must now have been given prior leave to enter as a fiancé(e) or for a period of more than six months. The prohibition on ‘switching’ is a recent development that is discussed in Chapters 7 and 8.

5. The parties must have met (para. 281), excluding those who marry by proxy and have not met subsequently. This requirement also applies to fiancé(e)s (para. 290) and this has proved problematic in some arranged marriages. The judicial interpretation of the requirement is discussed in Chapter 4.

6. The marriage must be subsisting and the parties intend to live together (after marriage, in the case of fiancés): paras 281, 290 and 295A. Following the abolition of the primary purpose rule in 1997, this rule, along with the probationary period of two years before indefinite leave is granted, is now the primary means of testing that a marriage is genuine. From 1983 until 1997, parties also had to establish that it was not the primary purpose of the marriage to obtain admission to the UK.10 The primary purpose rule was the principal means of preventing non-white, particularly male, marriage immigration and is discussed at length in Chapters 2, 3 and 4. The role played by the ‘intention to live together’ is discussed mainly in Chapter 4.

7. There will be adequate accommodation for the parties and any dependants without recourse to public funds in accommodation which they own or occupy exclusively and the parties will be able to maintain themselves and any dependants adequately without recourse to public funds (paras 281, 290 and 295A). ‘Maintenance and accommodation’ requirements apply throughout the Immigration Rules. A specific issue, discussed in Chapter 8, is government attempts to restrict third-party assistance to couples (and families), undermining traditions of extended family support. A more general point is that, while a policy of protecting the public purse may be relatively uncontroversial, the requirements have the effect of excluding some of the poorest UK residents from participation in international family reunion or formation.

8. Both parties must be aged at least 21 at the time of their arrival in the UK or of their grant or variation of leave (para. 277), with an exception for spouses of members of the armed forces. The minimum age has been raised progressively in the recent period and contrasts with a minimum age for marriage in the UK of 16 (with parental consent). Questions about the minimum age of marriage, forced marriage and the acceptability of very young marriages are considered later in this chapter and also in Chapters 6 and 7.

In recent years, in addition to the Immigration Rules, immigration has been increasingly controlled by frequently changing statutes. Statutory measures relevant to marriage applications include s. 24 Immigration and Asylum Act 1999 and ss. 19-25 Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. These govern the conduct of marriages involving non-EEA nationals and are discussed in Chapters 7 and 8.

The International Legal Context

The UK operates within the framework of international law, although individuals may rely on this only as provided for under UK domestic law and, in determining individual claims, most international legal conventions function only as a support for claims made under domestic law and as an aid to interpretation. The exceptions are EU law and the main provisions of the ECHR.11

International law recognises the right to marry and found a family.12 There is also a prohibition on arbitrary interference with, and a right to respect for, family life and a right for children to live with their parents.13 There may be a right to family reunification across borders, but not in all cases. Such a right is specifically granted to children (see Article 10 UN Convention on the Rights of the Child and the discussion in Jastram 2003: 186-7), but it is more inchoate when married couples are involved. However, some protection from expulsion and, more rarely, a right to admission is implied by the terms of several international instruments (see Jastram 2003: 191-7). In practice, almost all...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Table of Cases
• Acknowledgements
• 1 Introduction: The ‘Problem’ of Marriage Migration
• PART I 1962-1997
• PART II 1997-2010
• Appendix A
• Bibliography
• Index