Immigration into Britain increased after the World War II with predominant

Immigration into Britain increased after the World War II with predominant reasons being a shortage of labour in the Postwar British economy. At this time, the first immigrants came from Barbados, Jamaica and other Caribbean islands in the late 1940s and through the 1950s. The Caribbean immigrants came as a response to the Post war British economy at the time, which was suffering from labour shortage, and many of the immigrants came with their families.[1] Starting with the Aliens Act 1905, family migration policy had already been a source of concern, wherein the government has tried to balance the rights of family life with other concerns. The Aliens Restriction Act 1914 and the Amendment Act 1919 placed more restrictions on immigration. However, the post-war period saw the relaxing of immigration rules. The immigration from the Commonwealth was also facilitated by the fact the government had given free entry into Britain under the British Nationality Act 1948. However, increasing non-White immigration led to anti-immigrant sentiment, manifested in signs such as “No Irish, No Blacks and No Dogs.

Immigration from the Commonwealth was sought to be controlled in 1962 under the Commonwealth Immigrants Acts 1962 and 1968. People belonging to the Commonwealth, but who were born in the UK, were allowed freedom from immigration control under the Commonwealth Immigrants Act 1968 and such individuals could continue to live in the UK ‘free of control. All other immigrants from the Commonwealth were subject to immigration control. Therefore, the period of 1950s and 1960s is significant in two respect: first, this period saw rising immigration into the UK; and second, the first measures for immigration control were taken at this time. Admittedly, the measures were aimed at non-White immigrants.

The factors described above are in addition to other requirements that are to be met if a person is to be allowed entry into the UK. The requirement for proficiency in English language was established by the National, Immigration and Asylum Act 2002 and under this Act, immigrants had to satisfy the authorities that they have the required proficiency in English language. Importantly, the Act also sought to prevent entry into the UK through sham marriages, for which, the Act became the first legislation in the UK to define sham marriages. The need for management of family immigration has come from the fact that there is now an ever increasing rate of applications in this sector. As one study points out, that in 2009 out of the 194, 780 grants of settlement issued, 39% were issued on the basis of marriage or civil partnership.[5] Therefore, statistics demonstrate that marriage or civil partnership is an important reason for immigration into the UK.

A number of legislations have been passed to control and manage immigration into the UK. A single form of appeal in immigration decisions was provided by the Asylum and Immigration Act 2004. Moreover, a point based system was provided under the Immigration, Asylum and Nationality Act 2006. The Borders, Citizenship and Immigration Act 2009 provided that those residents who had spent more than 8 years in the UK could take advantage of naturalisation. Naturalisation through marriage could only be availed of if the applicant had been married for five years at the time of making the application.

The specific problems associated with immigration are that there are instances of people abusing the system. This primarily happens through sham marriages between UK residents or citizens with non-EU nationals. At the same time, rise in migration increases the economic burden on welfare state.[6] The development of immigration policy is the prerogative of the state. The state may be reasonable in its aims to prevent undesirable immigration, whether the undesirability relates to quantity or quality of immigrants.

The new strict measures in 2012[7] are a continuation of a process, in conformity with the notion that the family settlement law “has often been dominated by an overriding concern with preventing abuse of the system and the entry of undesirable migrants or of those who might become a burden on welfare state.”[8] After 2012, major changes have been made in the immigration rules. For instance, after 9th July 2012, £18,600 per annum is minimum income required for an individual to be allowed entry into the UK. The requirement has come under severe criticism by immigration activists and NGOs.

This essay discusses the issues related to immigration, which provide arguments for and against the government’s strict application of immigration policy. These issues include integration of non- EU spouses, limiting or controlling immigration for the purpose of protecting economy, and preventing abuse of immigration policy and preventing sham or forced marriages.

Pre and Post July 2012 Changes to Immigration Rules and Impact on Family Settlement

In July 2012 some important changes were made to Immigration Rules that have allowed the government to create a stricter regime for immigration control. In some respects, there are contrasts in how the government deals with spouses, fiances, children and parents now, in comparison with the approach before 2012. In order to understand the difference between pre and post 2012 position with respect to family migration, it is important to consider the actual change that has been effected.

As per the changes made effective from 9 July 2012 onwards, instead of Part 8 of the Immigration Rules 1971, entry applications would be screened under Appendix FM. As per this, where the applicant is using grounds of private and family life, specific requirements would have to be satisfied by the applicant. These requirements relate to the period of residence to be shown by the applicant. The requirements of eligibility will differ for applicants in age groups of 18 years of age or less, between 18 years to 25 years, and applicants falling in the group of above years. Those applicants who are over the age of years must be residents in the UK for a minimum of years to be eligible.

With respect to family migration, the Home Office has also clarified the scope of the new rules as follows:

“First, we shall end the situation where those claiming the right to enter or remain in the UK on the basis of ECHR Article 8 –the right to respect for private and family life – do so essentially without regard to the Immigration Rules. The new rules will fully reflect the factors which can weigh for or against an Article 8 claim. They will set proportionate requirements that reflect, as a matter of public policy, the Government’s and Parliament’s view of how individual rights to respect for private or family life should be qualified in the public interest to safeguard the economic well-being of the UK by controlling immigration and to protect the public from foreign criminals. This will mean that failure to meet the requirements of the rules will normally mean failure to establish an Article 8 claim to enter or remain in the UK, and no grant of leave on that basis.”

The new rules relating to immigration have had a profound impact on entry sought on basis of marriage or family life. One of the major changes in the rules is with respect to maintenance and accommodation. Before the changes made effective in July 2012, Part 8 of the Immigration Rules 1971 were applied to applicants. What was required under this was that the applicant must be able to maintain himself and his dependants in an ‘adequate’ manner. Similarly, where there were dependant children in the application, the child also must be adequately maintained by the applicant parent or relative as per the provisions of para 297(v). Therefore, before 2012, the applicant was required to have adequate maintenance and accommodation. What was ‘adequate’ was an objective question, which depended on issues related to income support and benefits, such as housing, council tax, education and health. In Jehangara Begum and others (maintenance-savings) Bangladesh, the savings of the applicant were also taken into consideration for determining

the adequacy requirement. After 2012, the rules have changed and become stricter. After 9 July 2012, the rules require the meeting of the minimum financial threshold in order to ensure that the applicant or his dependants are able to maintain a standard of living without

their being a burden on the state. There is no longer a need to interpret ‘adequate’ for the purpose of maintenance and accommodation, as the law specifically provides that an income of £18,600 per annum is the minimum financial requirement for entry to be accepted. Consequently, the new rules have led to a significant reduction in the number of family migration visas. Also significant is the fact that ECHR, Article 8 is no longer the only criteria for the determination of applications of entry. Now, other requirements are also to be met by the applicants, including public interest in safeguarding the economic interest of the UK and protecting the public from foreign criminals.

The new rules that are made after 2012 are a continuation of the government policy on the immigration issue. The intimate and the familial relations have been regulated by the government, some argue, to regulate racial proximity. The visa is used by the government to manage intimate space of the family. These criticisms are not new. In 1979, when a new change was made to Immigration rules, requiring that the spouses should have met each other before making an application for entry, there was criticism of those rules as well. It was considered to be racially discriminatory as in some communities, spouses could marry without having met. In Abdulaziz, Cabales and Balakandali v UK, the ECtHR found that this requirement is not racially discriminatory.[20] This requirement was also upheld in Mehreban v ECO Islamabad where the court demanded the spouses should at least know each other before making the application.

The criticisms against the strict and restrictive nature of the immigration law, are compounded by the fact that immigration control law also gives wide discretionary powers to administrative authorities. Another problem with respect to the new rules is

The courts have also accepted the practicality and reasonableness of making an application outside the UK provided that there are no ‘insurmountable obstacles’ to family life of the applicant if the application is made from outside the UK.

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