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)
1. WHO ARE
WE?
"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.
2. SUMMARY OF
OUR CAMPAIGN
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. KEY ACHIEVEMENTS
OF THE
BWB CAMPAIGN
SO FAR
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. OUR SITUATION
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. POINTS FOR
THE INQUIRY
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. CONCLUSION
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
|
