Select Committee on Home Affairs Written Evidence

7.  Memorandum submitted by Brides Without Borders: Keep Couples Together

  (Please note that where we use the word "spouse" we are usually referring to genuine married couples. However, fiance«es and partners are also subject to the same adverse treatment which we describe)


  "Brides Without Borders" (BwB) is a group of British citizens (mainly women) and their supporters, who are fighting to keep their foreign born spouses in the UK. These couples (there are about 50 in the group) risk being forcibly separated due to the existing Immigration Rules and controls. We British citizens all met our spouses in the UK, albeit in unusual and difficult circumstances, ie our spouses are in the asylum process. We believe that we should have the fundamental right to marry whom we choose, and subsequently, exercise our right as British citizens to live safely with our chosen partners in the UK. We are concerned about the risk to them upon their unecessary return to unsafe countries.

  We are also campaigning against the requirement for non-EU citizens to obtain permission from the Home Secretary to marry in the UK. The Joint Council for the Welfare of Immigrants is also lobbying against this new rule.

  We believe that current IND policy and practice is contravening our basic human rights under European law (ECHR) and the Human Rights Act, ie Articles 8 and 12.


Re:  Existing Entry clearance/IND policy and process

  2.1  The "Brides Without Borders" (BwB) group acknowledges the need for a fair, firm and transparent UK Immigration and Asylum policy which works effectively and justly. We also recognise the need for the government to tackle "sham" marriages as a means of deceptively obtaining the right of residency in the UK.

  2.2  However, we would like the Committee to ask the IND to justify its rationale for refusing to grant any kind of leave to remain in the UK for those failed asylum seekers who are genuinely married to British citizens. The Immigration Act 2002 states: "Discretionary leave may be granted to an applicant who has an Article 8 claim or is able to demonstrate particularly compelling reasons why removal would be inappropriate". We have detailed evidence of several couples where the IND is unwilling even to consider granting a period of "discretionary leave" in these cases. This includes cases where the British partner has British children from another relationship, or where there might be ageing parents involved. This means that foreign born spouses, who are also failed asylum seekers, are being forced to return to their country of origin to apply for entry clearance to the UK. If discretionary leave were to be granted, the IND could take the opportunity from within the UK to satisfy itself of the genuineness of the marriage, and could then choose to grant indefinite leave to remain after a two year "probationary" period.

  2.3  Although the government has passed recent legislation to speed up the process of asylum decision making, it was often the case in the recent past that individuals could be waiting several years for a final decision on their case, while exercising their rights of appeal. In these circumstances, it is totally unrealistic for the government to fail to recognise that asylum seekers will continue to pursue the basic human instinct to make friends, form relationships, get married and even have children while awaiting the outcome of their case. After all, they are people, just like you and me. We cannot realistically expect human beings in this situation to put their basic instincts on "hold". On the contrary, they are obviously more likely to seek out and need human contact, compassion, genuine friendship and affection, given that their existing family ties have often been brutally severed, or sometimes, even destroyed.

  2.4  By enforcing the separation of couples in this way, we believe that the Home Office/IND is contravening the basic rights of genuinely married couples, under Article 8 of the European Human Rights Convention.


  3.1  We have written to every MP, MEP, and members of the House of Lords to make them aware of our campaign and to enlist their support.

  3.2  We lobbied Parliament on 10 October 2005, followed by a press conference in Westminster Hall.

  3.3  On 10 October 2005, Mr Neil Gerrard MP, (Labour) raised this issue in the House of Commons Debate on Asylum and Immigration. To our knowledge, Mr Andy Burnham/Mr Tony McNulty have yet to respond on the government's behalf.

  3.4  Our Scottish couples have been profiled on the "Scotland Today" news programme, and on 16 November 2005, Ms Elspeth Atwooll, MEP (Lib Dem) questioned the rationale for the above policy in the European Parliament. The President of the Council agreed to pass on her concerns to the Home Office.

  3.5  Some of our couples are exploring the possibility of taking a test case to the European Court of Human Rights.


  4.1  Because our spouses are failed asylum seekers, the IND expect them to go back to their country of origin to obtain the necessary entry clearance/spouse visa. Normally, this would not be a problem—but we did not meet our spouses abroad—we met them here. Our spouses are being asked to return to unsafe countries from which they originally fled, for example, Democratic Republic of Congo, Burundi, Togo, Afghanistan, Iran and Iraq. Sometimes, these countries do not even have a British Embassy through which an entry clearance application can be made, for example Togo, Iraq and Afghanistan. Alternatively, we as British women are being told by IND that we can choose to accompany our husbands to these unsafe, often undemocratic countries, and make a life for ourselves with our spouse there. What kind of "choice" is this?

  4.2  At various Immigration Tribunals, the Home Office has argued that these couples' rights to a family life (Article 8) are not affected when the foreign born spouse is forced to return to get entry clearance, even when there might be a risk to that person on return. They have argued this on the basis that there is only likely to be a "temporary separation" of the couple. This is even in cases where the Home Office has acknowledged that the marriage is "genuine and subsisting." The Home Office has stated many times that we are free to accompany our spouses if that is what we wish. But that is not what we wish, and in many cases, spouses are being forced to return even when the Foreign Office Travel Advice/UNHCR has recommended that it is not safe to do so. Also, the Home Office cannot guarantee that the spouse will be successful with their entry clearance application abroad, nor how long this might take.

  4.3  We have evidence of spouses being put in danger on return to a country designated by the Home Office. In one case, an Iraqi Kurd was told to go to Jordan to apply for entry clearance. On arrival, he was interrogated, then imprisoned by the Jordanian authorities. He felt in extreme danger. His British wife rang the British Embassy and her MP, and was informed that they could not help as he was not a British citizen. The Iraqi Embassy also refused to help. He was put in danger because of this inhumane visa policy. His application could have been safely processed from within the UK.

  4.4  We also have evidence of permanent separations because a settlement visa has been refused by Entry Clearance Officers abroad.

  4.5  The practical reality of current IND policy is that British citizens are faced with a stark choice: either leave the UK to live with our spouses in unsafe countries abroad and against our will, or risk being permanently separated from them.

  4.6  We find this aspect of IND policy particularly unjust, repugnant, unequal, and somewhat ironic, given the following two facts:

    (i)  a member of another EU country can come to work and live in Britain. Under current European law, s/he would be able to exercise their right under the Freedom of Movement Treaty, to have their spouse join them in the UK, regardless of that person's immigration status or nationality. So the bizarre effect of this is that couples get greater protection of their Article 8 rights in an EU country other than their own.

    (ii)  a Somalian woman claims asylum and is given refugee status in the UK. Her Somalian husband applies to remain with her in the UK. The Home Office decides he has no legitimate reason to remain and argues that he should return to Somalia to apply for entry clearance. The case goes to Tribunal on the basis of their Article 8 rights. The Tribunal rules that as the wife is a refugee it would not be reasonable to expect her to return to live in her country of origin as it would unsafe for her to do so. The Tribunal also acknowledges the husband would have insurmountable difficulties in obtaining a passport, returning there and in applying for entry clearance as a spouse. The Tribunal decides that "in all the circumstances it would be a disproportionate interference with his right to respect for family life under Article 8 to require him to leave the United Kingdom and seek to apply for entry clearance. Accordingly we consider the Article 8 claim in this case must succeed and this appeal is therefore allowed". (Ref: UKIAT 00003 2005, Somalia).

  With regard to the latter case, of course we want those who are in genuine need of UK protection to receive it. However, why is it that the IND believe that we are not entitled to receive equal treatment as British Citizens? Why is it deemed OK to breach our Article 8 rights; to be forcibly separated from our spouses; and for the UK government to tell us that it is OK for us to go and live in these same, very unsafe, war torn, undemocratic, corrupt countries from which refugees have consistently fled and been offered sanctuary in the UK? Why would we, as British women, be deemed safe? Where is the rationale and justification for this kind of treatment?


  5.1  We would like the following questions put to the IND as part of this inquiry:

    (a)  What is their rationale for refusing to grant discretionary leave in these cases, given that this flexibility is available in their own Asylum Policy Instruction Notice 3/2005? Why are they not able to consider these cases on compassionate grounds and exercise this discretion?

    (b)  In those cases of genuine marriage to British citizens and where this, and all of the entry clearance criteria as a spouse can be evidenced from within the UK—why do they insist that the foreign born spouse leave the UK to apply for entry clearance from abroad?

  (Especially as this involves unnecessary stress, anxiety and inhumane suffering for the couples involved; and especially where there are British children involved; and especially where it might be unsafe for the foreign born spouse to return to their country of origin; and where the IND does not carry out a risk assessment to assess the safe return of these individuals)

    (c)  Currently, what processes are in place to assess the risk to those people married to British citizens, who are expected to return to their country of origin to acquire the necessary UK spouse visa? What support/advice or consideration does the IND give to those people who have no choice but to return to a country where there are no UK entry clearance facilities?

  As stated above, BwB are aware of cases where foreign born spouses have been arrested upon return, and have faced immense difficulties trying to get to a British Embassy to make an application for entry clearance.

    (d)  How does IND/Home Office justify the cost to the UK tax payer (including ourselves!) of removing and/or detaining the failed asylum seeking spouse to their country of origin to apply for entry clearance from abroad, when these details could be checked from within the UK?

    (e)  The IND will often justify this policy by arguing that failed asylum seekers should not be allowed to "switch" into marriage in the UK, as they regard this as "queue jumping". They use this argument even when the marriage is genuine and subsisting, and where asylum seekers have been in the UK for several years awaiting a decision. Surely this means that if a foreign born spouse is forced to return to their own country of origin to get a spouse visa (or sometimes to another country because there is no visa issuing facility in their own country), then this only serves to lengthen the entry clearance queue in these countries, and increase the workload for the Entry Clearance Officers overseas?

    (f)  On a more general note, we have examples of couples having made written inquiries to the IND, including faxes, recorded delivery letters and letters from our solicitors, which have elicited no response from them whatsoever. We also have knowledge of where the IND claim to have lost important original documents (given to them in good faith), such as marriage certificates, birth certificates and passports. In the asylum context, these documents are extremely precious, and may be impossible to replace from overseas.

  We believe that our experience is reiterated in the reports of other agencies that have had dealings with the IND, such as the South London Citizens community group (recently published), and also in the various Complaints Audit Committee Reports. We would be interested to know how the IND can justify the huge increase in fees for their "services", when there has been little evidence of improved service over time, and apparently scant regard for the provision of a basic level of care (either from their own staff or their subcontractors), in their interactions with "customers"?


  6.1  We hope that you will be able to include the above concerns as part of the Committee of Inquiry, so that our campaigning group might effect change to the current IND Visa policy, which in this context, we believe is unjust, inflexible, irrational and which does little to contribute towards effective UK immigration control. On the contrary, it creates unnecessary suffering, enforced inhumane separations and unproductive, cost intensive bureaucracy both within and outside the UK.

29 November 2005

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