Refugee Family Reunification in

the UK: Challenges and Prospects

In partnership

CRiL Centre for FamiliesTogether

Research in Law A programme managed by the British Red Cross
 Refugee Family Reunification in the UK: Challenges and Prospects

About the authors

This report was prepared by Dr Silvia Borelli, Fiona Cameron, Dr Elena Gualco and Claudia Zugno of the
Centre for Research in Law (CRiL) at the University of Bedfordshire. Research assistance was provided by
Marie-Sophie Mourguet.

Acknowledgments
The present research project grows out of the experience gained by the research team through their
participation in the Refugee Legal Assistance Project, based at the Centre for Research in Law, University of
Bedfordshire. In this respect, we wish to extend our thanks to Ash Ali, one of the project’s founders, Brian
Cunningham of BRASS, the project’s partner organisation, as well as all of the students who have taken
part in the project since it was set up in 2013. Special thanks are due to our refugee clients and their family
members who were willing to share their stories in order to inform this study.
Thanks are also due to the many caseworkers and practitioners from other organisations who shared their
insights and contributed their knowledge and professional experience. We owe a special debt of gratitude
to Vanessa Cowan and Sohini Tanna of the British Red Cross for their invaluable support, advice and
insights throughout the project. We would also like to express our gratitude to the colleagues and experts
who gave up their time to comment upon various drafts of the present report, in particular our critical friend,
Tony Macilveen (Derbyshire Law Centre), and to Clare Tudor (Helena Kennedy Centre Refugee Rights Hub,
Sheffield Hallam University), Andy Hewitt (Refugee Council), Robert Bircumshaw (Central England Law
Centre), Sonia Lenegan (ILPA) and Caroline Pritchard (formerly of Amnesty International UK).
We are also very grateful to David Bolt, Independent Chief Inspector of Borders and Immigration, and
Deirdre Gilchrist, Head of Operational Regulation at OISC, for their time and their willingness to engage with
the project.
This report is dedicated to the memory of Gina Clayton, an outstanding advocate for the rights of refugees,
and a staunch supporter of the research in this report, including kindly acting as reviewer. This report
was made possible thanks to the support of the Families Together Programme, which commissioned and
funded the research.

The Families Together Programme

Families Together is a multi-donor grant fund that is led and directed by a coalition of sector partners,
hosted by the British Red Cross. For more on the Families Together Programme, please visit https://www.
redcross.org.uk/about-us/whatwe-do/how-we-support-refugees/families-together.
Final responsibility for this report lies with the authors and its content does not necessarily always reflect the
position of the British Red Cross, the Families Together Programme or its partners. This report takes into
account case law and policy developments prior to 31 January 2021.

S. Borelli, F. Cameron, E. Gualco and C. Zugno,

Refugee Family Reunification in the UK: Challenges
and Prospects (2021)

© Copyright, the Authors (2021). All rights reserved.

 Refugee Family Reunification in the UK: Challenges and Prospects

Contents
Foreword 1 3.2 Issues with the current legal framework 29

Executive Summary 2 3.2.1 The scope of the right to family

reunification: what makes a family? 29
4
3.2.2 Inability of refugee minors to act
Key Recommendations 6 as sponsor for their immediate
1. Introduction 8 family members 32

1.1 The debate on refugee family 3.2.3 Quality and accessibility of the law 36
reunification in the UK 8 3.3 A legal framework in need of reform 37
1.2 Research approach 10 3.4 Main findings and recommendations 38
1.3 Structure 11 4. The application process
2. The international and European and decision-making 39
legal framework on refugee 4.1 Main issues with the application
family reunification 12 process and decision-making 39
2.1 The right to family unity and family 4.1.1 Navigating the online
reunification in international law 12 application system 39
2.2 Family reunification under the European 4.1.2 Evidentiary matters 41
Convention on Human Rights 13
4.1.3 The quality of decisions 45
2.3 The notion of family under
international law 15 4.1.4 Dealing with complex and
non-standard applications 46
2.4 Additional safeguards for
unaccompanied children 18 4.2 Positive developments
and remaining issues 47
2.5 Refugee family reunification as a
route to international protection 19 4.2.1 The onshoring of
decision-making 47
3. The legal framework for refugee
family reunification in the UK 21 4.2.2 The impact of the onshoring
process on the quality of decisions 49
3.1 Legal routes for refugee
family reunification 21 4.2.3 Formalising the link between
the asylum process and Refugee
3.1.1 Refugee Family Reunion under Family Reunion 50
Part 11 of the Immigration Rules 23
4.3 Tackling the problem at its roots:
3.1.2 Family visa applications for the need for a paradigm shift in the
“other family members” – approach to Refugee Family Reunion 53
Appendix FM and Part 8
of the Immigration Rules 25 4.4 Main findings and recommendations 56

3.1.3 Leave “outside the Rules”:

exceptional circumstances
and compassionate factors 28
 TABLE OF CONTENTS Refugee Family Reunification in the UK: Challenges and Prospects

Contents
5. L
 egal assistance for 6.1.2 Law Centres Network
Refugee Family Reunion 58 and Citizens Advice Bureaux 75

5.1 The regulatory framework for 6.1.3 University law clinics 76

immigration advice and services 58
6.2 Challenges for the pro bono sector 78
5.2 Publicly-funded legal assistance
60 6.2.1 Capacity 78
for refugee family reunification
6.2.2 Regulation 79
5.2.1 Legal aid for Refugee
Family Reunion after LASPO 60 6.2.3 Funding 80
5.2.2 The LASPO Review 64 6.3 The way forward: collaboration,
partnership and specialisation 81
5.2.3 Exceptional Case Funding 66
6.4 Main findings and recommendations 85
5.3 Recognising Refugee Family Reunion
as a route to protection 68 7. Conclusions
and Recommendations 86
5.4 Main findings and recommendations 71
Endnotes 93
6. The role of the charitable and pro bono
sector 72 List of Organisations Interviewed 105
6.1 Mapping the availability of Glossary and Acronyms 106
free legal support 72

6.1.1 Refugee support charities 72

 Refugee Family Reunification in the UK: Challenges and Prospects | 1

Foreword
The publication of this report comes at a critical moment in time, where the principle of refugee protection
and family reunion are at significant risk of being undermined in the UK.
On the 24 March 2021, the UK government published The New Plan for Immigration; a series of proposals
including sweeping changes that undermine how the UK fulfils its international obligations to those seeking
asylum, most notably by proposing differential treatment according to the way a refugee arrived in the UK.
This will include restricted family reunion rights for some refugees.
The proposals are deeply alarming as refugee family reunion provides the only safe and regular route
for refugee families, who have been forced to separate because of persecution or conflict, to reunite.
From 2015-2019, more than 29,000 people were able to enter the UK to be reunited with their family via
family reunion. The vast majority of visas were granted to women and children, often living in insecure
and dangerous places. Restricting access to this vital safe route will result in families being left with the
harrowing choice of staying permanently separated from their loved ones, or embarking on treacherous,
expensive, unregulated journeys to reach them in the UK.
If the government are serious in their ambition to expand ‘safe’ routes, they must abandon the proposal
to restrict access to family reunion for some refugees. Rather, it should change the existing rules on family
reunion, as per our recommendations below, so that more people can access this vital, existing safe route.
What we are calling for:
- Expand the criteria of who qualifies as a family member for the purposes of refugee family reunion allowing
adult refugees in the UK to sponsor their adult children and siblings who are under the age of 25; and their
parents;
- Give unaccompanied refugee children in the United Kingdom the right to sponsor their parents and
siblings who are under the age of 25 to join them under the refugee family reunion rules;
- Reintroduce legal aid for all refugee family reunion cases.

Families Together is a coalition of over 50 organisations who support the expansion of the UK’s refugee
family rules, including a number who work directly with refugees in the UK to support their applications for
family reunion.

The Families Together Coalition

#FamiliesTogether
www.familiestogether.uk
 Refugee Family Reunification in the UK: Challenges and Prospects | 2

Executive Summary

Separation from family members during concerns raised by refugees, refugee support
forced displacement and flight can have charities and independent observers include the
devastating consequences on the well-being restrictive rules on eligibility, the unnecessarily
of refugees and their ability to integrate burdensome nature of the application process,
within the new host community. the lack of free qualified legal support and the
unpredictability of the decision-making process.
Family reunification – broadly defined as the
process by which refugees and other beneficiaries This report aims to contribute to this debate by
of international protection are able to be reunited providing a comprehensive assessment of the
with their family members – is of paramount UK legal framework relating to refugee family
importance in ensuring that the right to family life of reunification and its implementation in practice,
refugees is respected. Refugee family reunification including the position in respect of legal aid, and
also plays a crucial role as an instrument of the availability of qualified assistance in making
protection, through which vulnerable family applications for family reunification.
members – most often women and children –
who may themselves be in danger due to their The overall purpose of the report is to make
association with a refugee can be brought to safety. recommendations aimed at ensuring that the UK
framework is fully compliant with the UK’s
The right of refugees to family reunification international obligations, and to improve the
is recognised at the international level, and effectiveness and fairness of the UK family
international bodies underline that States are under reunification system in practice.
a duty to provide accessible and effective family
reunification procedures which allow for the swift Chapter 1 introduces the importance of refugee
reunification of refugee families. family reunification and provides an overview of
the debate which has taken place in the United
In the United Kingdom, the legal and policy Kingdom in the years since the withdrawal of
framework regulating family reunification for legal aid for Refugee Family Reunion applications
refugees and beneficiaries of humanitarian following the entry into force of the Legal Aid,
protection has been the subject of extensive Sentencing and Punishment Act 2012 (LASPO).
debate – and criticism – for some years. Common It also explains the meaning of key terms and
 SUMMARY Refugee Family Reunification in the UK: Challenges and Prospects | 3

how they are used in the present report and dedicated team of caseworkers within the Asylum
the methodological approach adopted in its Directorate within UK Visas and Immigration
preparation. (UKVI). Relying on both interviews with
stakeholders and published material, the chapter
Chapter 2 sets the scene for the analysis of then discusses the complexities and obstacles
the UK system by providing an overview of the which arise at the various stages of the process.
international legal framework relevant to refugee
family reunification. The chapter examines the Chapter 5 focuses on the availability of publicly-
main instruments of international refugee law and funded legal assistance for Refugee Family
international human rights law and the practice of Reunion applications in England and Wales,
international monitoring bodies. It also examines and the impact which LASPO has had upon the
the extent to which family reunification should immigration advice sector more generally. The
itself be seen as an instrument of protection, and chapter also assesses the Exceptional Case
a means by which those who would otherwise Funding (ECF) scheme as a means by which to
qualify for refugee status may escape situations in manage the gap in the availability of legal aid for
which their life or well-being is at risk. A separate Refugee Family Reunion.
section explores the enhanced protection
accorded to children under various human rights Chapter 6 examines the assistance available
instruments, most notably the United Nations within the not-for-profit sector for refugees who
Convention on the Rights of the Child. seek to make an application for Family Reunion.
The chapter identifies the major pro bono
Chapter 3 examines the legal framework for providers of RFR legal services, and also seeks to
refugee family reunification in the UK, in particular identify trends within the sector, instances of best
the routes under Part 11 and Appendix FM of the practice, gaps in provision and potential solutions
Immigration Rules and the possibility for family to the shortage of free qualified legal help.
members of a refugee to be granted leave “outside
the Immigration Rules” on the basis of exceptional Chapter 7 sets out the report’s conclusions and
circumstances or compassionate factors. recommendations.

The focus of the report then shifts to the The report relies on desk-based research and
application of the legal framework in practice, with empirical evidence resulting from surveys and
a view to identifying the practical obstacles which interviews with refugees, practitioners, staff of
refugees encounter when trying to exercise their refugee support charities and university law
right to family reunification. clinics. It also draws on interviews with the
Independent Chief Inspector of Borders and
Chapter 4 assesses the application and decision- Immigration (ICIBI), staff of the Office of the
making process. It provides an account of the Immigration Services Commissioner (OISC), local
developments which have occurred in recent government representatives, and representatives
years, including the so-called “onshoring” of the UK Office of the UN High Commissioner
of Refugee Family Reunion applications to a for Refugees (UNHCR).
 Refugee Family Reunification in the UK: Challenges and Prospects | 4

Key Findings

1. L
 egal routes for refugee family reunification and the UK
legal framework

a. T
 he provisions of the Immigration Rules governing how refugees can be reunited with family members
are unnecessarily complex, difficult to navigate and at points internally inconsistent.
b. P
 reventing refugee children from acting as sponsors for their immediate family members is inconsistent
with the UK’s international obligations and is not in line with the practice of other European States.
c. T
 he notion of family adopted for the purposes of RFR in the Immigration Rules is overly restrictive,
insufficiently flexible and does not reflect the realities of many refugee families.
d. T
 he exceptional grant of leave “outside the Immigration Rules” to family members who do not fall within
the narrow eligibility criteria for RFR is not a satisfactory solution for complex situations, such as those
of de facto adopted children and post-flight family members.
e. U
 ntil the end of 2020, asylum seekers who entered any EU country could make use of the procedure
under the Dublin system in order to be reunited with their immediate family member(s) who were already
in the United Kingdom. This safe and legal route for family reunification ceased to be available at the
end of the Brexit transition period on 31 December 2020. There is thus an even more pressing need to
ensure that the system for Refugee Family Reunion is fit for purpose and responds adequately to the
needs of refugees and their family members.

2. The application procedure and the Home Office decision-

making process

a. T he poor quality and inconsistency of decisions in respect of RFR applications has been consistently
highlighted by independent observers and is a source of frustration and concern for many in the sector.
b. Despite considerable improvements to the online application system following the migration to a new
platform in 2019, independent observers and users report that there are still several issues which make
the system difficult to use and unnecessarily time-consuming.
c. A number of further issues have arisen as a result of the outsourcing of visa services to which run Visa
Applications Centres overseas.
d. Since 2018, some progress has been made in improving the decision-making process, in particular
through the “onshoring” of decision-making and the transfer of RFR applications to a dedicated team
within the Asylum Directorate.
e. The way in which Home Office decision-makers approach evidence and evidentiary requirements appears
often not to be in line with the Home Office’s own guidance and fails to take into account the specificities
of the situation of refugees.
f. With regard to complex and non-standard applications, there is anecdotal evidence that Home
Office decision-makers make limited and inconsistent use of the possibility of granting leave “outside
the Immigration Rules” and do not always consider proprio motu the existence of exceptional
circumstances or compassionate factors.
g. The root cause of the issues with the quality of decisions is identified by many in the sector to be the
persistence of a “culture of disbelief” within the Home Office, including amongst staff in the Asylum
Directorate.
 Refugee Family Reunification in the UK: Challenges and Prospects | 5

3. Qualified legal support

a. R FR applications are complex and qualified legal support is necessary for the majority of refugees in order
successfully to navigate the process.
b. The withdrawal of legal aid for RFR as a result of LASPO has had a markedly detrimental impact on the
immigration advice sector, both pro bono and for profit, creating “advice deserts” where no high-quality
legal support (free or otherwise) is available for refugees wishing to make RFR applications.
c. The ECF scheme does not adequately address the problems created by the withdrawal of legal aid for
RFR. Although ECF is now easier to obtain than in the past, the sums available for initial applications are
inadequate, meaning that many solicitors will not take on RFR cases even if ECF is obtained.
d. The charity sector has responded to the cuts introduced by LASPO by developing a number of projects
which provide legal assistance to refugees making RFR applications. However, the sector is presently
unable to meet demand and there is scarcity and uneven geographical distribution of free legal support.
e. There is general agreement within the refugee sector that, in light of the complexity of the application
system, what is at stake for applicants and their sponsors, and the nature of refugee family reunification
as a protection matter, RFR work should continue to be regulated by OISC as a Level 2 Asylum and
Protection matter.
f. The OISC has been proactive in supporting the voluntary sector since the entry into force of LASPO and
aims to facilitate the registration of charities wishing to provide pro bono immigration services. However,
the perceived difficulty of obtaining OISC Level 2 accreditation still acts as a deterrent for some charities
and other not-for profit organisations wishing to provide free legal assistance for Refugee Family Reunion.
 Refugee Family Reunification in the UK: Challenges and Prospects | 6

Key Recommendations

For the Home Office

- Recognise explicitly that RFR is a protection, rather than an immigration, matter and ensure that all
processes relating to RFR reflect this.
- Simplify and rationalise the Immigration Rules governing RFR and Family Member visa applications to
ensure that they are accessible and understandable.
- Give unaccompanied refugee children in the United Kingdom the right to sponsor their parents and
minor siblings to join them in the UK, as required by the UK’s international obligations.
- Expand the categories of who qualifies as a family member for the purpose of RFR to allow refugees in
the UK to sponsor their adult children and siblings under the age of 25, and their dependent parents.
- Ensure that applications for dependent family members who are currently not expressly eligible for
RFR are brought “within the Immigration Rules” by adding a flexible and open-ended category of
eligible applicants, based on a broad notion of dependency.
- Resolve the remaining technical issues affecting the online application system and closely monitor
the functioning of VACs operated by commercial companies, including ensuring the availability of free
appointments for RFR applicants.
- Ensure that all information relevant to family reunion is accurately captured during the sponsor’s
asylum process.
- Take steps to ensure that the approach of decision-makers to evidentiary requirements is in line with
the Home Office’s own guidance and takes into account the difficulties which refugees may encounter
in producing documentary evidence.
- Mandate decision-makers to make increased use of the possibility to interview sponsors and
applicants whenever they consider that the evidence submitted with the application is not fully
satisfactory.
- Commission and pay for DNA testing when, upon initial assessment, the documentary evidence
supporting a RFR application appears to be insufficient to substantiate the existence of the relevant
family relationship.
- Improve internal monitoring and reporting systems in order to ensure quality control and transparency
of decision-making in respect of RFR applications, particularly those concerning complex, non-
standard cases and grants of leave “outside the Immigration Rules”.
- Engage fully with the recommendations of the Windrush Review and design and implement a meaningful
and radical programme of “major cultural change” aimed at eradicating the “culture of disbelief” in all
areas of the asylum and immigration system.

For the Ministry of Justice

- Reintroduce legal aid for all RFR applications.
- Pending the reintroduction of legal aid for RFR, increase the levels of fees and disbursements available
through ECF so as to make it viable for practitioners to take on RFR cases.
 KEY RECOMMENDATIONS Refugee Family Reunification in the UK: Challenges and Prospects | 7

For the Office of the Immigration Service Commissioner (OISC)

- Continue with ongoing initiatives aimed at promoting a better understanding of the role of OISC in
relation to regulation of the voluntary sector.
- Standardise and simplify the process for registration of organisations and advisers wishing to
undertake only RFR casework by creating a dedicated Level 2 registration for RFR work.

For the refugee sector/Families Together Coalition

- Broaden the partnerships built through the Families Together Programme and the Families Together
Coalition, so as to include solicitors and barristers working on RFR, local authorities and international
NGOs.
- Create a dedicated online community of practice for those involved in refugee family reunification, so
as to facilitate the sharing of information, resources and discussion throughout the sector.
- Set up independent monitoring and evaluation of the impact of the onshoring process upon the quality
of decisions on RFR, particularly those relating to complex, “outside the Rules” applications.
 Refugee Family Reunification in the UK: Challenges and Prospects | 8

1 Introduction

The family is the natural and fundamental A refugee is someone who is unable or
group unit of society and is entitled to unwilling to return to their country of origin
protection by society and the state.” owing to a well-founded fear of being
Universal Declaration of Human Rights, 1948 persecuted for reasons of race, religion,
nationality, membership of a particular social
group, or political opinion. Recognition
1.1 The debate on refugee family as a refugee is not constitutive of refugee
reunification in the UK status, but declaratory. Consequently, those
seeking recognition as a refugee (asylum
Separation from family members during forced seekers) are to be considered as potential
displacement and flight can have devastating refugees even before the process of status
consequences on the well-being of refugees determination comes to an end. This
and their ability to integrate within the new host concept is of special importance in ensuring
community.1 Unsurprisingly, when asked what that asylum seekers are protected from
their first priority is once they have reached safety, the risk of being returned to their country
refugees almost without exception respond that of origin even if the existence of the risks
their primary concern is to be reunited with the this would entail has not yet been finally
family members whom they had to leave behind. ascertained.
Unless otherwise specified, throughout
this report the term “refugee” is to be
Key Terms understood as encompassing not only
individuals who meet the requirements for
refugee status under the 1951 Convention
Family reunification is the process by
Relating to the Status of Refugees (Refugee
which family members living in different
Convention), but also beneficiaries of so-
countries are reunited in the country in
called complementary protection. An
which one of them resides. In this process,
example of such complementary protection
the family member who is joined by the
is the notion of subsidiary protection
rest of the family is the sponsor, while the
under EU law, which is granted to individuals
family members who are applying to join the
who do not meet the definition in the
sponsor are the applicants. In the specific
Refugee Convention but would still be at
case of refugee family reunification, the
risk of suffering “serious harm” if returned to
sponsor is a refugee, who is seeking to be
their country of origin. In this regard, “serious
joined in their country of asylum by their close
harm” is defined as consisting of “death
family members.
penalty or execution; or torture or inhuman
While in international law the terms “refugee or degrading treatment or punishment; or
family reunification” and “refugee family serious and individual threat to a civilian’s
reunion” can be used interchangeably, life or person by reason of indiscriminate
in the present report the term Refugee violence in situations of international
Family Reunion (RFR) refers specifically or internal armed conflict”. In the UK
to the principal legal route for reunification of legal system, the same definition has
refugee families in the UK legal system, i.e. been adopted and incorporated into
the immigration route regulated by Part 11 of domestic legislation and the Immigration
the UK Immigration Rules. Rules, but it is referred to as “humanitarian
protection”.
 INTRODUCTION Refugee Family Reunification in the UK: Challenges and Prospects | 9

In the United Kingdom, the principal mechanism recent years. Two private members’ bills aiming
for refugees to be reunited with their family at addressing some of the key flaws in the
members is through the Family Reunion route UK refugee family reunification system were
regulated by Part 11 of the Immigration Rules. introduced to Parliament in the 2017-19 session.
Access to this immigration route is limited to Although there appeared to be sufficient cross-
the partner and dependent minor children of party support, the bills did not make it into law
individuals who have been granted refugee before the end of the Parliamentary session.6
status or humanitarian protection in the UK. A new private members’ bill is currently before
Controversially, at present, unaccompanied the House of Lords and is, at the time of writing,
refugee children are unable to act as sponsors for awaiting the allocation of Parliamentary time for
their parents, other responsible adult, or siblings. second reading.7 In the meantime, the much-
Whilst there exist other immigration routes within awaited post-implementation review of LASPO,
the UK legal system which refugees can pursue published by the Ministry of Justice in February
in order to be reunited with their family members 2019, concluded that no significant changes are
in the UK, those routes are more onerous, more needed in relation to the provision of legal aid for
costly and subject to stringent financial and other refugee family reunification cases.8
eligibility requirements.
In 2013, with the entry into force of the Legal Aid,
Sentencing and Punishment of Offenders Act
2012 (LASPO), legal aid was withdrawn for RFR
applications in England and Wales. Refugees were
faced with the choice of either making applications
themselves, paying for legal advice, or finding an
immigration advice charity to help them navigate
what is already a complex process. At the same
time, the position of refugees seeking to bring their
family to the UK was made more complicated by
the “hostile environment” and a prevailing “culture
of disbelief” within the Home Office.
Much has been written in recent years about
the challenges faced by refugees attempting
to be reunited with their families in the UK;
campaigns have been mounted and alliances
formed, including the Families Together Coalition.2
Refugee support charities have vocally expressed
their concerns about the current system,
including through several comprehensive and
well-documented reports published since the
adoption of LASPO.3 International observers,
including the UN High Commissioner for Refugees
(UNHCR), have echoed the concerns identified
by refugee support charities, and called on the
UK government to do more to recognise the use
of family reunification as a tool of international
protection and to make the process easier, fairer
and more inclusive.4 Similarly, the Independent
Chief Inspector of Borders and Immigration (ICIBI),
in a series of detailed and well-documented
reports on the UK refugee family reunification
system, has identified a number of serious flaws
with the current rules and procedures, extending
beyond the unavailability of legal aid.5
After fleeing her homeland, Princess feared she’d never get
to see her family again. Fortunately the Red Cross was able
Despite this explicit criticism and intensive to reunite them.
campaigning, relatively little has changed in
 Refugee Family Reunification in the UK: Challenges and Prospects | 10

Against this background, the present report aims this has enabled the research team to adjust the
to contribute to the ongoing debate by exploring in research and amend and update the research
a comprehensive manner the problems faced by to reflect developments which have intervened
refugees who wish to be reunited with their family over the course of the project, most notably those
members under the UK immigration system, with deriving from the process of so-called “onshoring”
a view to proposing viable solutions for improving of visa applications and those resulting from Brexit
the current legal framework and practice. and the end of the so-called
Dublin system.
The report does not purport to duplicate the
excellent research work done by academics and Second, the research also relied on primary
organisations in the charity sector in recent years. empirical evidence, obtained through semi-
Rather, it draws upon that research in relation structured interviews. The goal of the interviews was
to specific aspects of the family reunification to gather evidence as to stakeholders’ experiences
process, together with new empirical research, under the current system, and thereby to gain an
in order to provide a holistic picture of the many improved understanding of the implementation
challenges currently faced by refugees who and operation in practice of the existing normative
wish to be reunited with their family members framework and of the extent to which it provides
under the UK immigration system, and by the protection for the fundamental rights of refugees, in
organisations which seek to support them. particular their right to family unity.
The collection of evidence took place between
1.2 Research approach January 2019 and December 2020 and consisted
of two sets of semi-structured interviews. A first
The research approach implemented within batch of semi-structured interviews was conducted,
this report has been twofold. First, with a view either in person or over the phone, with staff from
to understanding the current legal framework a variety of organisations working with refugees
and highlighting its flaws, a significant part of and providing assistance with RFR applications
the research has been based on a desk-based across the UK. Solicitors practising in the field, and
review of primary and secondary legal sources the staff of refugee support charities, law centres
and academic literature on refugee family and university legal clinics were amongst those
reunification. To this end, the research undertook interviewed. Taking as a starting point the Register
an exercise of mapping and analysing the relevant of Regulated Immigration Advisers maintained
international instruments and UK domestic by the Office of the Immigration Services
legislation and policy guidance. Commissioner (OISC), an attempt was made to
contact all organisations registered at Level 2 or
In addition, with a view to illuminating further above in order to establish which among them
the policy environment, the team has reviewed offered legal services in respect of RFR. In addition,
the reports and other policy papers on refugee interviews were held with staff from all organisations
family reunification produced by international who are members of the Families Together
organisations (e.g. UNHCR and the Council of Programme. A total of 41 interviews took place with
Europe) and UK refugee charities, including in staff from 23 organisations.10 Subsequently, in order
particular those published under the auspices of to gather views about the changes in the application
the British Red Cross and the Families Together system and decision-making process introduced
Programme. in the preceding year and any impact that these
An important source of insights have been the developments had had on service provision
reports on RFR published by the Independent and delivery, a selection of eight of the original
Chief Inspector of Borders and Immigration (ICIBI), interviewees from early 2019 were re-interviewed
which often contain data and information not in March 2020. As part of this round of updating
available to the general public or to organisations interviews, the ICIBI and the Head of Operational
in the sector. The desk-based research constituted Regulation at OISC were also interviewed.
the initial phase of the project; as well as
constituting the overall framework for the research,
it allowed the research team to identify and clarify
the main issues to be investigated. Following the
initial mapping exercise, it has remained a key
component throughout the duration of the research:
 Refugee Family Reunification in the UK: Challenges and Prospects | 11

The second set of semi-structured interviews involved in their application process. Informed
was conducted with 15 individuals who have had consent was obtained from all interviewees. With
direct personal involvement with the RFR system the exception of interviewees from government
in the UK insofar as they either (a) had successfully institutions (e.g. OISC and the ICIBI), interviews
sponsored, (b) were in the process of sponsoring, were conducted on the basis that any quotations
or (c) had tried to sponsor family members through would be anonymised.
the RFR application process; or (d) were family
members of refugees, who had come to the UK 1.3 Structure
as the result of a successful RFR application. The
interviewees were identified either relying on the
The first two chapters provide an overview of
network of contacts maintained by the University
the legal framework applicable to refugee family
of Bedfordshire’s Refugee Legal Assistance Project
reunification and applications for RFR
(RLAP), or through referrals made by some of the
in the UK legal system. Chapter 2 sets the scene
service providers interviewed. The case studies
for the analysis of the UK system by providing
in this report are based on statements made by
an overview of the international legal framework
these individuals. Interviewees came from a range
and practice relevant to family reunification for
of countries, including Eritrea, Zimbabwe, Syria,
refugees. Chapter 3 then examines the legal
Sudan, Afghanistan and Iran. All but three of the
framework for refugee family reunification in the
fifteen individuals interviewed were male. The
UK, in particular the routes under Part 11
majority of those interviewed had experienced a
and Appendix FM of the Immigration Rules and
fairly straightforward family reunion process, which
the possibility for leave to be granted “outside the
had taken less than six months; two had been
Rules” on the basis of exceptional circumstances
embroiled in the process for over five years.
or compassionate factors.
Ethical issues and clearance The focus of the report then shifts to the practical
Conducting interviews with refugees and their issues surrounding the application of the relevant
family members inevitably raises ethical issues, law and an assessment of how easy it is in
and a mitigation plan for minimising these risks practice for refugees in the UK to access and
when conducting interviews was submitted to enjoy the right to family reunification. Chapter
and approved by the relevant research ethics 4 examines the application process through to
structures within the University of Bedfordshire. decision-making from a number of points of view,
Re-traumatisation of refugee interviewees was with particular reference to problems identified
seen as a potential risk, particularly for those both through interviews and in published material.
who had very difficult personal situations and Chapter 5 looks at the availability of legal
those who had not been successful in their assistance in England and Wales, in particular
applications. In these cases, the sponsor was the impact of the entry into force of LASPO, and
offered the opportunity to have a caseworker or the possibility of using Exceptional Case Funding
friend to sit in on the interview with them. The to manage the resulting gap in the availability of
research team also ensured that the caseworker legal aid. Chapter 6 focuses on the organisations
followed up with the refugee one week after that provide services for refugee family
the interview. In addition, all sponsors were reunification, the different ways of delivery of such
offered the option of having the assistance of a services that have been adopted and how such
professionally trained interpreter. Interviews with organisations have managed the many challenges
all but three of the sponsors took place face- that they face. Finally, Chapter 7 sets out the
to-face. The risk of undue influence was also report’s conclusions and recommendations.
particularly relevant when interviewing refugees
who had been assisted by the RLAP team
at the University of Bedfordshire. As refugee
interviewees had been assisted pro bono by the
RLAP clinic, the project team was particularly
careful to be sensitive to the fact that these
individuals might feel under pressure to give
positive responses. This risk was mitigated by
using an interviewer whom the interviewees
had not previously met and who had not been
 Refugee Family Reunification in the UK: Challenges and Prospects | 12

2 The international and

European legal framework on
refugee family reunification
Furthermore, it has been argued in the academic
This chapter provides an overview literature that a duty on States to take steps
of the international legal framework to facilitate the reunification of refugee families
relative to refugee family reunification. may be inferred from Article 12 of the Refugee
Convention, which provides that
Section 2.1 examines the principle of
family unity under international law and the Rights previously acquired by a refugee
obligations upon States to allow refugees and dependent on personal status, more
to access family reunification procedures. particularly rights attaching to marriage,
Section 2.2 looks at the practice under the
shall be respected by the Contracting
European Convention on Human Rights.
Section 2.3 then focuses on the way in State, subject to compliance, if this be
which international human rights bodies necessary, with the formalities required by
have interpreted the notions of “family” and the laws of that State, provided that the
“family unit” for the purpose of protection and right in question is one which would have
promotion of the right to family life. Section been recognized by the law of that State
2.4 takes a closer look at how international had [they] not become a refugee.
law regulates the situation of unaccompanied
minors and their special need for protection Although the norm likewise does not address
in the context of immigration and family family unity as such, nevertheless, the specific
reunification. Finally, section 2.5 discusses the reference to rights related to marriage may
crucial role of refugee family reunification as a be invoked as an argument in support of the
route to international protection. existence of State duties to allow refugees to enjoy
family unity by means of family reunification.13
Within the framework of international human rights
2.1 The right to family unity law, both the Universal Declaration of Human
and family reunification in Rights (UDHR) and the International Covenant on
international law Civil and Political Rights (ICCPR) include provisions
on the protection of the family from unlawful or
International law recognises the crucial importance arbitrary interference.14 In its General Comment No.
of the family as “the fundamental group unit of 23 on the right to family life under the ICCPR, the
society”11 and that, when families are separated Human Rights Committee highlighted that
due to circumstances beyond their control, access
to effective family reunification procedures is vital in […] the possibility to live together implies the
order for individuals to be able to enjoy their right adoption of appropriate measures, both at
to family unity. the internal level and, as the case
may be, in cooperation with other States,
Although the Refugee Convention does not to ensure the unity or reunification of families,
expressly address the issue of family reunification,
particularly when their members are
the Final Act of the 1951 diplomatic conference
held in Geneva which resulted in its adoption
separated for political, economic or similar
expressly recognised the need to “ensure that the reasons.15
unity of the refugee’s family is maintained”.12
 Refugee Family Reunification in the UK: Challenges and Prospects | 13

Such a requirement is of particular relevance in in gathering the evidence necessary to support

respect of refugees and other beneficiaries of family reunification applications, since it requires
international protection, who – by definition – are States to provide assistance to refugees when in
unable to return to their countries of origin, and for need of documents that would normally be issued
whom access to family reunification procedures in by the authorities of their country of origin.24
the country of asylum is often the only way to enjoy
their right to family unity.16 2.2 Family reunification under
Despite the absence of a treaty norm expressly the European Convention on
imposing an obligation in respect of refugee Human Rights
family reunification, it is generally recognised that
there exists a norm of customary international law Article 8 of the European Convention on Human
which requires States to allow and facilitate the Rights (ECHR) protects the right to family life.
reunification of refugees with, at the very least, It provides:
their spouse or partner, and any minor dependent
children.17
 veryone has the right to respect for his
E
The Executive Committee of the UNHCR
Programme (ExCom) has addressed the issue private and family life, his home and
of refugee family reunification on a number of his correspondence.
occasions and in respect of several aspects,
highlighting, inter alia, the fundamental role played There shall be no interference by a public
by the families of refugees in fostering integration authority with the exercise of this right
in the country of asylum.18 With a view to ensuring except such as is in accordance with the
that the principle of family unity is respected, the law and is necessary in a democratic
ExCom has called on States “to ensure that the society in the interests of national security,
reunification of separated refugee families takes public safety or the economic well-being of
place with the least possible delay” and “in a
the country, for the prevention of disorder
positive and humanitarian spirit”.19 This encompass
or crime, for the protection of health or
duties not only upon countries of asylum, but also
upon the country of origin, which should allow morals, or for the protection of the rights
individuals to exit the country for the purpose of and freedoms of others.”
family reunification.20 In addition, the ExCom has The general approach of the European Court
also emphasised that countries of asylum should of Human Rights (ECtHR) under Article 8 in the
ensure that the lack of means of subsistence context of immigration is that the provision does
or adequate accommodation do not constitute not as such by default guarantee a right to family
an obstacle to starting the process of family reunification.25 Rather, once it has found that
reunification, providing assistance in that regard if family life exists between the individuals who seek
necessary.21 to be reunited, the ECtHR will consider whether
Furthermore, in order to provide effective access the refusal to admit family members into the State
to family reunification procedures and given territory constitutes a justifiable interference with
the normally high overall costs of the family the right to respect for family life.26
reunification process, the UNHCR has specifically In this respect, two of the criteria developed by
recommended that States should eliminate visa the ECtHR in its case law on family reunification
fees for refugees and beneficiaries of international are especially relevant for refugees: whether the
protection and their family members, and separation from family members was voluntary,
encouraged the setting up of financial support and whether it is possible to develop family life
schemes to help cover the expenses involved in elsewhere. In respect of the second, according
bringing family members to the host country.22 to the so-called “elsewhere test”, the State’s
The ExCom has also called on States to be flexible refusal to allow entry for the purpose of family
with respect to the lack of documentary evidence reunification will amount to an unlawful interference
of family ties, which should not per se constitute with the right to family life when allowing entry for
grounds for refusal.23 In this respect, Article the purposes of family reunification is in practice
25 of the Refugee Convention may be read as the only way to re-establish family life.27 This will
implying the duty for States to take positive steps notably be the case where family life cannot be
 Refugee
THE INTERNATIONAL AND EUROPEAN LEGAL FRAMEWORK Family Reunification
ON REFUGEE in the UK: Challenges and Prospects | 14
FAMILY REUNIFICATION

established either in the country of origin, or in With regard to the factors which are relevant in
a third country. Since refugees are by definition determining whether reunification in a Contracting
unable to return to their country, the “elsewhere State would be the “most adequate” way to
test” effectively creates a presumption of in favour ensure the enjoyment of family life, the ECtHR
of granting entry for family reunification where the has placed particular emphasis on the age of
family members have remained in the country of the applicant,30 combined with specific social
origin.28 and cultural elements of dependency related
thereto,31 the situation in the country of origin of
In the context of cases of family reunification the family member, their linguistic and cultural ties
involving children, the ECtHR has adopted a with it 32 and the ties with the Contracting State
somewhat more robust approach, assessing where it is suggested that reunification should be
whether family reunification constitutes the permitted.33
“most adequate” – rather than the only – way to
develop family life.29 This approach is of particular The ECtHR acknowledges that the situation
relevance in cases where the family members of of refugees is markedly different from that
a refugee have also had to abandon the country of other migrants, and that refugee family
of habitual residence, and are in a third country. reunification is not merely an immigration matter,
In such a case, under the “elsewhere test” as the possibility to be reunited with their family
there might not be an automatic presumption in constitutes an “essential element in enabling
favour of admission, since the refugee may not persons who have fled persecution to resume
necessarily be at risk in the third country to the a normal life.”34 In light of their vulnerability, the
same extent as they would be in their country ECtHR has indicated that it is necessary for
of origin, and therefore the re-establishment of States Parties to ensure that refugees have
family life in the third country may not per se be access to family reunification procedures that
impossible. Where the living conditions of the are more favourable than those available to other
refugee’s family members in the third country or migrants, in particular by adopting a flexible
the protection accorded to the refugee are less approach in the assessment of the evidence
favourable to the full enjoyment of the right to required to substantiate the existence of family
family life, and therefore “less adequate”, however, ties.35
the asylum State may nevertheless be required to
grant admission to the family members.

Walid Adenas (left, black top), 19, and his brother Ahmed Adenas (right, red top), 22, fled Sudan in 2011 along with their mother and
sisters. They came to join their father Abdullah Adenas (centre) who had resettled in Portsmouth a year earlier.
 Refugee Family Reunification in the UK: Challenges and Prospects | 15

2.3 The notion of family under The standard suggested is that of de facto family
life based on the existence of dependency,
international law which “requires that economic and emotional
relationships between refugee family members be
The international instruments which protect the
given equal weight and importance in the criteria
right to family life do not provide a definition of
for reunion as relationships based on blood lineage
the notion of “family”, nor an indication of the
or legally sanctioned unions”.42
type of relationships which constitute “family ties”
protected under international law. Under the ICCPR, the position of the Human
Rights Committee is that the domestic legislation
This allows for a flexible understanding of the notion,
and practice of the host State should serve
in line with social and cultural developments, but at
as a benchmark.43 For instance, in its General
the same time leaves a wide margin of discretion
Comment on the right to privacy under Article 17
to States, including with regard to who is entitled to
ICCPR, the Committee noted that the term “family”
family reunification.
“[should] be given a broad interpretation to include
State practice in this respect is still not entirely all those comprising the family as understood
consistent, especially when it comes to granting in the society of the State party concerned”.44
access to family reunification procedures to Such an approach should be applied equally
members of the extended family.36 In general, in determining which family ties are relevant in
however, most States tend to circumscribe access an immigration context for family reunification
to family reunification to members of the nuclear purposes. Given the increasing recognition in
family: such an approach, however, fails to give the domestic laws of many States of familial
adequate consideration to both the evolution of the relationships between members of the extended
concept of family worldwide and the exceptionality family, it seems difficult to accept the limitation of
of the predicament of refugees, which often results access to family reunification to members of the
in the creation of “families of choice or nuclear family, strictly defined.45
circumstances” as opposed to traditional families
Under the European Convention on Human Rights,
based on blood ties or formalised relationships.37
the ECtHR has developed a considerable body
With regard to family reunification, the practice of case law setting out the criteria relevant to
of international monitoring bodies provides clear determining what constitutes “family life” for the
indications as to which family members of a purpose of Article 8 ECHR, including in the context
refugee should, as a minimum, be entitled to family of immigration.46 The ECtHR adopts an approach
reunification. Already in 1983, the UNHCR noted based on the existence of de facto family ties and
that there existed “a virtually universal consensus has recognised relationships constituting family life
in the international community” concerning the on the basis of substantive rather than formal links
need to reunite members of the “nuclear family.38 between family members – with no necessity for
According to the UNHCR, spouses, engaged blood ties or even cohabitation.47
couples or partners who have lived together as
In this regard, the ECtHR has recognised the
if married, minor or adult unmarried dependent
relationship between both married and unmarried
children, and unaccompanied minors and their
couples as amounting to family life.48 Although
parents and/or siblings all form part of the
the mere fact of engagement on its own cannot
nuclear family, and are therefore entitled to family
be said to amount to family life, the ECtHR has
reunification.39 The UNHCR also recommends
conceded that family life can be said to exist
that other family members – whether the parents
where there was an intention on the part of the
of adult refugees, other relatives, or non-blood
fiancées to live together which could not be put
family members – should be regarded as eligible
into practice for reasons beyond their control.49 No
for family reunification if they are dependent on a
differentiation is made under the ECtHR’s case law
refugee.40
between heterosexual or same-sex relationships
In light of the exceptional circumstances of the for the purpose of recognising family ties.50
refugee predicament and of the consequences
With regard to minor children, family life has been
that the refugee experience may have on refugee
determined to exist when a legally valid marriage
families, the UNHCR has urged States to apply
exists between their parents, even in the case of
“liberal criteria” when determining the reach of the
no cohabitation of the child with the parents.51 If
family for the purposes of family reunification.41
the child was born out of wedlock, the relationship
 Refugee Family Reunification in the UK: Challenges and Prospects | 16

will amount to family life if the existence of family serious health conditions requiring assistance
ties can be proven in light of cohabitation or, that nobody else can provide.55 With specific
when this is not the case, in light of the existence regard to siblings, the ECtHR has established that
of meaningful contact with the parent(s).52 family life unquestionably exists when siblings live
together,56 or the relationship between them was
With regard to adopted children, the case law never interrupted – even when adult siblings are
indicates that for family life to be established there involved.57
is no need for formal adoption to have occurred:
again, the existence of family ties is determined The ECtHR has also recognised that family life
on a de facto basis, considering the nature of for the purpose of Article 8 ECHR may also
the relationship between the parent(s) and the exist beyond the strict boundaries of the nuclear
adopted or fostered children.53 In the case of family, including between grandparents and
adult children, the ECtHR has recognised the grandchildren, or nephews and nieces and their
existence of family life between young adults and aunt or uncle.58 Although the relevant decisions
their parents when the adult children have not concern non-immigration cases, the same
founded their own family and still live with their approach to the determination of what constitutes
parents.54 For family life to exist between married a “family” for the purposes of application of Article
adult children and their parents or adult siblings 8 should apply in an immigration context.59
there must be elements of dependence such as
 Refugee Family Reunification in the UK: Challenges and Prospects | 17

Table 1: The scope of family reunification in Europe: Eligible family members

Partner Unmarried minor children For unaccompanied minor sponsors Other dependent family
members

De Incl. Other
Reg. Incl. Legal Minor Adult
Spouse facto same- Sponsor’s Parent resp. Parents Siblings
partner Partner’s adopted guardian siblings children
partner sex adult

Austria* ü1;3 ü1;3 – ü1;3 ü3 ü3 ü3 ü ü – – ü ü –

Belgium ü3 ü3 – ü3 ü3 ü3 ü3 ü – – ü8 ü ü –
Bulgaria ü ü ü – ü ü ü ü ü ü – ü ü –
Croatia ü ü ü ü ü ü ü ü ü ü5 ü5 ü ü6 –
Cyprus* ü1;3 – – ü1;3 ü1;3 ü1;3 ü1;3 ü3 – – – – – –
Czech
Republic* ü1;3 ü1;3 – ü1;3 ü1;3 ü1;3 ü1;3 ü3 ü3 ü3 – ü2 ü2 –
Denmark* ü ü ü ü ü ü ü ü ü ü ü6 ü ü ü
Estonia ü1;3 – – – ü1;3 ü1;3 ü1;3 ü ü ü – ü1;3 ü1;3 –
Finland* ü1;3 ü1;3 ü1;3 ü1;3 ü3 ü3 ü3 ü ü ü ü5 ü2 ü2 ü2
France ü1 ü1 ü1 ü1 ü ü ü ü – – ü8 – – –
Germany* ü3 ü3 – ü3 ü3 ü3 ü3 ü ü ü5 ü2;5 ü2 ü2 ü2
Greece* ü3 ü3 ü3 ü3 ü3 ü3 ü3 ü ü ü ü9 ü2 ü2;6 –
Hungary* ü1;3 – – – ü1;3 ü1;3 ü1;3 ü3 ü3 ü3 ü5 ü ü2 ü
Ireland ü1;3 ü1;3 ü2 ü1;3 ü3 3 3
ü3 – – ü8 ü2;4 ü2;4 ü2;4
Italy ü ü – ü ü ü ü ü ü5 ü5 – ü ü –
Latvia* ü1 – – – ü1 ü1 ü1 ü ü – – – – –
Lithuania ü3 ü3 ü3 – ü3 ü3 ü3 ü3 – – – ü3 ü3 –
Luxembourg ü3 ü3 – ü3 ü3 ü3 ü3 ü ü ü ü9 ü3 ü3 –
Malta* ü1;3 – – – ü1;3 ü1;3 ü1;3 ü ü ü – – – –
Netherlands ü1;3 ü1;3 ü1;3 ü1;3 ü1;3 ü1;3 ü1;3 ü3 – – ü3;5 ü3;7;6 ü2 ü2
Norway ü1;3 ü1;3 ü1;3 ü1;3 ü3 – ü ü – – ü ü2 ü2 ü2
Poland ü3 – – – ü3 ü3 ü3 ü3 ü3 ü3 – – – –
Portugal ü ü ü ü ü ü – ü ü ü ü5;9 ü ü2 –
Romania ü1 – – – ü1 ü1 ü1 ü ü ü ü9 ü4 ü4 –
Slovakia* ü1;3 – – – ü3 ü3 ü3 ü ü – – ü ü –
Slovenia* ü1;3 ü1;3 ü1;3 ü1;3 ü1;3 ü1;3 ü1;3 ü – ü ü5 ü ü ü
Spain ü ü ü ü ü ü5;6 ü ü ü ü ü8 ü6 ü6 ü6
Sweden ü1;3 ü1;3 ü1;3 ü1;3 ü1;3 – – ü – – ü2;5;6 ü2;6 ü2;6 ü2;6
Switzerland* ü1 ü1 – ü1 ü1 ü1 ü1 – – – – ü6 ü6 ü6
UK ü1 ü1 ü1 ü1 ü1 ü5 ü1 – – – – ü2 ü2 ü2

ü = Permitted – = Not permitted

* Less favourable treatment for beneficiaries of subsidiary protection

1.  nly pre-flight relationships are exempted from financial and/or accommodation

O 6. Only if members of the same household back in the country of origin
requirements 7. Maximum age limit (25) applies
2. Financial and/or accommodation requirements apply 8. Siblings must be minor, unmarried, dependent on parents joining sponsor
3. Financial and/or accommodation requirements apply after specified time 9. If parents deceased/untraceable
4. Minimum residence period requirements for sponsors
5. Discretionary/Exceptional grounds/Conditions of dependency
 Refugee Family Reunification in the UK: Challenges and Prospects | 18

2.4 Additional safeguards for positive, humane and expeditious manner”.62

unaccompanied refugee children Article 22 of the Convention provides that States
Parties have an obligation to ensure that refugee
The possibility of being reunited with family and asylum-seeking children “receive appropriate
members is of the utmost importance for protection and humanitarian assistance in the
unaccompanied refugee and asylum seeking enjoyment of applicable rights set forth in the
children. present Convention and in other international
human rights or humanitarian instruments to
which the said States are Parties”, and that, for
In all actions concerning children, whether such purpose, “States Parties shall provide,
undertaken by public or private social as they consider appropriate, co-operation in
welfare institutions, courts of law, any efforts by the United Nations and other
administrative authorities or legislative competent intergovernmental organisations or
bodies, the best interests of the child shall non-governmental organisations co-operating with
be a primary consideration.” the United Nations to protect and assist such a
Article 3(1), Convention on the Rights child and to trace the parents or other members
of the Child of the family of any refugee child in order to obtain
information necessary for reunification with his or
Article 3 of the UN Convention on the Rights her family”.63
of the Child establishes that the fundamental
principle to be considered in all matters related As may be readily understood, in the case of child
to children is that of the best interests of the refugees, reunification in the country of origin is not
child, and that States must take all appropriate a viable option, and reunification in the country of
measures as necessary in order to guarantee asylum is the only solution which ensures respect
that a child is protected. In addition to being “an for the best interests of the child principle. This
interpretative principle and procedural guarantee”, has been emphasised, inter alia, by the monitoring
the best interests of the child principle gives rise to body of the Convention on the Rights of the
substantive rights, albeit of a qualified nature.60 As Child, the Committee on the Rights of the Child,
such, it plays a crucial role in securing the rights of according to which:
children in a wide variety of situations, including in
Family reunification in the country of origin
the context of family reunification.61
is not in the best interests of the child and
The right of a child to be with his or her parents is should therefore not be pursued where
recognised by Article 9 of the Convention on the there is a “reasonable risk” that such a
Rights of the Child, according to which return would lead to the violation of
fundamental human rights of the child.
States Parties shall ensure that a child shall Such risk is indisputably documented in the
not be separated from his or her parents granting of refugee status or in a decision of
against their will, except when competent the competent authorities on the
authorities subject to judicial review applicability of non-refoulement obligations
determine, in accordance with applicable […]. Accordingly, the granting of refugee
law and procedures, that such separation status constitutes a legally binding obstacle
is necessary for the best interests of the to return to the country of origin and,
child. […].” consequently, to family reunification therein.
Whenever family reunification in the country
The Convention makes express mention of family of origin is not possible […], the obligations
reunification in Article 10, which specifies that under article 9 and 10 of the Convention
States Parties are under an obligation to ensure come into effect and should govern the
that “applications by a child or his or her parents
host country’s decisions on family
to enter or leave a State Party for the purpose
reunification therein.64
of family reunification shall be dealt with […] in a
 Refugee Family Reunification in the UK: Challenges and Prospects | 19

With regard to the categories of family members between two competing interests: the right of
who should be granted permission to enter for the individuals to family unity and family life, and
purpose of reunification with an unaccompanied the sovereign prerogative of States to control
refugee child, the Committee on the Rights of the immigration. However, as discussed in the
Child has taken the view that “[t]he term ‘family’ previous sections, in the case of refugee family
must be interpreted in a broad sense to include reunification, the discretion of States is limited
biological, adoptive or foster parents or, where by the unique circumstances of the refugee
applicable, the members of the extended family predicament, which will normally strongly point in
or community as provided for by local custom”.65 the direction of reunification in the State of asylum.
The Committee has further referred “to any person
holding custody rights, legal or customary primary In addition to representing often the only avenue
caregivers, foster parents and persons with whom for refugees to effectively exercise their right to
the child has a strong personal relationship”.66 family unity, the process of family reunification
plays an important – and at times crucial – role
The importance of family reunification for in addressing the protection needs of the family
unaccompanied refugee children has also been members whom the refugee had to leave behind
highlighted by the Executive Committee of the when fleeing persecution.
UNHCR Programme67 and by the UNHCR,
which, in its guidance on Reunification of Refugee Given the risk faced by refugees in their countries
Families, notes that: of origin, it will often be the case that their family
members may equally be at risk of suffering
An unaccompanied minor child should be persecution or other threats to their freedom
reunited as promptly as possible with his or and safety, either because of their own activities
or personal characteristics or simply due to
her parents or guardians as well as with
their close association/family relationship with
siblings. If the minor has arrived first in a a refugee. This is recognised, inter alia, by the
country of asylum, the principle of family UNCHR, according to which “family members/
unity requires that the minor’s next-of-kin be dependants will often have the same international
allowed to join the minor in that country protection needs as the recognized refugee due to
unless it is reasonable under the similarities in profile, personal circumstances and
circumstances for the minor to join them in the conditions in the country of origin”.71
another country. Because of the special
Family members may thus be so similarly
needs of children for a stable family situated to their refugee sponsor as to be
environment, the reunification of eligible for protection in their own right on one
unaccompanied minors with their families, of the grounds provided by the Convention.
whenever this is possible, should be treated Several considerations weigh in favour of a
as a matter of urgency.68 “presumption of persecution” in the case of the
family members of refugees, potentially making
At the European level, the ECtHR’s case law them prima facie refugees.72 In this regard, it must
clearly indicates that, in case of unaccompanied be emphasised that, for the purposes of being
foreign minors, States are “under an obligation granted international protection, refugees need
to facilitate the family’s reunification”,69 and that a not necessarily have already suffered persecution;
failure to do so constitutes a breach of Article 8 what is necessary is that their fear of persecution
of the ECHR. The ECtHR has also underlined the is “well-founded”, meaning that it is objectively
relevance of the best interests of the child principle likely that they may risk persecution in their country
in cases concerning family reunification for minors, of origin.73
emphasising that States must take it into account
as a primary consideration in deciding on family Under the Refugee Convention, it is not necessary
reunification applications.70 that the reason(s) why persecution occurs reflect
the real condition of the individuals concerned.
Conducts or thoughts attributed to them by their
2.5 Refugee family reunification persecutors are sufficient to substantiate a claim
for protection.74 This may be the case with the
as a route to international family members of a refugee, who may ipso facto
protection be accused of sharing their (actual or imputed)
views, and consequently be persecuted –
Family reunification stands at the crossroads
 Refugee Family Reunification in the UK: Challenges and Prospects | 20

especially in the case of women or children.75 Nevertheless, a number of States consider

that the Refugee Convention is not applicable
As also noted by the UNHCR,“[f]amily members/ in situations of generalised violence, and have
dependants, regardless of age, may also have therefore developed complementary protection
a well-founded fear of persecution in their own instruments to fill the potential void in protection.83
right as a result of their family link or association Within the European Union legal framework, for
with the recognized refugee”.76 Thus, family instance, subsidiary protection may be granted
members may have a prima facie need for where there is a real risk of the applicant suffering
protection as a result of the very fact of being “serious harm” in the country of origin, which
family members of a refugee. As such, they may includes “serious and individual threat to a civilian’s
fall within the Convention definition because they life or person by reason of indiscriminate violence
fear persecution as “members of a particular in situations of international or internal armed
social group” – i.e. the refugee’s family. Indeed, conflict”.84 As clarified by the Court of Justice of
“[i]t is not uncommon that persecution is inflicted the European Union (CJEU),
on the family group because of the particular
position or actions of a family member” – whether
[t]he word ‘individual’ must be understood
they are the head of the family or a dependent
family member.77 Wider state practice also as covering harm to civilians irrespective of
reflects a recognition of the family as a particular their identity, where the degree of
social group for protection purposes.78 This indiscriminate violence characterising the
principle has found application several times in armed conflict taking place […] reaches such
judicial decisions in both Canada and the United a level that substantial grounds are shown
States.79 Similarly, the Danish Refugee Appeals for believing that a civilian […] would, solely
Board has granted international protection to a on account of [their] presence on the territory
Kurdish Muslim from Aleppo on grounds of her of that country or region, face a real risk of
family ties. Her mother had been recognised as being subjected to the serious threat referred
a refugee as she had worked as a nurse treating
in Article 15(c) of the Directive.85
combatants from the Free Syrian Army and
was thus at risk of persecution by the Syrian
Given the above, there are a variety of reasons to
government. Consequently, a risk for the applicant
believe that the family members of refugees left
was also found to exist, based on the risks for
behind in their countries of origin may be equally
family members of individuals targeted as political
at risk of suffering persecution or similar threats for
opponents by the Syrian government.80 In the UK,
their safety, and thus would in principle be eligible
the House of Lords has held that “[a]s a social
for international protection.86 In many cases, the
group the family falls naturally into the category of
only aspect which differentiates them from their
cases to which the Refugee Convention extends
refugee family member is that they have not yet left
its protection”.81
their country of origin – a fundamental condition
Moreover, and independently, family members of for the grant of refugee status.87 Still, the manifest
refugees left behind may be in need of protection need for protection of family members in many
due to the deteriorating security situation in cases is a further reason why family reunification
their country of origin. The subjective character should happen in a prompt and effective manner.
of the Refugee Convention definition requires Where family reunification procedures are not
that the assessment of a claim for protection be prompt, effective and sufficiently flexible so as to
conducted in respect of the individual situation of be able to adapt to the specific needs of the family
the applicant. This apparently excludes so-called members of refugees, the consequences can be
war-refugees from protection. However, their irremediable.88
manifest need for protection has led the UNHCR
As a consequence, in the context of forced
to clarify that no discrimination should be made
displacement, family reunification constitutes
between refugees fleeing in peacetime or wartime,
a fundamental complementary pathway for
adding that armed conflicts can reach such a
admission to a safe country and as such the
degree of violence to amount to persecution. The
relevant domestic procedures should be made
fact that such violence has a collective rather than
more accessible, should be “tailored to the refugee
individual target does not set a higher threshold for
context”, and “viewed through a protection lens
protection to be granted.82
as opposed to solely an immigration control
mechanism”.89
 Refugee Family Reunification in the UK: Challenges and Prospects | 21

3 The legal framework for

refugee family reunification
in the UK
3.1 Legal routes for refugee
The present chapter assesses the
family reunification
current legal framework for refugee
family reunification in the UK, including
Family reunification for refugees and other
against the relevant international
beneficiaries of international protection in the UK
standards as outlined in chapter 2.
can be pursued through several legal routes. The
Section 3.1 provides an overview of the most straightforward route is the Family Reunion
principal legal routes through which refugees (RFR) route under Part 11 of the Immigration Rules,
and other beneficiaries of international which is available to close family members of
protection can be reunited with their family both refugees and beneficiaries of humanitarian
members in the UK. For each legal route protection.
the following elements are investigated:
The ability to apply for RFR depends on whether
relevant rules, eligibility criteria and other
both the refugee in the UK (the sponsor) and
requirements imposed on sponsors/
their family member abroad (the applicant) meet
applicants. Section 3.2 goes on to discuss
the strict eligibility criteria and requirements
some of the problems and limitations
established by Part 11. Where some of the
deriving from the current framework. Section
requirements are not met, the Home Office
3.3 then examines options for reform.
decision-makers are required to consider whether
there are any exceptional circumstances or
compassionate factors which justify a grant of
leave “outside the Rules” (LOTR).
For family members who do not meet the eligibility
criteria for RFR, and where no exceptional
circumstances or compassionate factors exist
which may warrant the grant of LOTR, family
reunification may be obtained through the “Family
Member” route which is currently regulated by
Appendix FM to the Immigration Rules. Additional
routes for refugees to be reunited with their
families exist under the resettlement programmes
coordinated by the UNHCR in which the UK
participates.90
Until the end of the Brexit transition period on
31 December 2020, the so-called Dublin system
represented an important alternative legal route
for reuniting separated asylum-seeking family
members in the UK. The UK rejected the option
of remaining within the Dublin system and
therefore this route is no longer available to family
members of refugees in the UK.91
Mada’s husband was forced on a treacherous journey to
safety after their home country of Syria was engulfed in
conflict. Mada and her two young children stayed behind
and faced three dangerous, traumatic years alone.
 Refugee Family Reunification in the UK: Challenges and Prospects | 22

A lost safe and legal route to family reunification:

the Dublin system
The so-called Dublin system, centred process – especially following the transfer
around the Dublin III Regulation,92 aims of unaccompanied asylum seeking children
to establish clear and fair criteria for the following the dismantling of the infamous Calais
allocation of responsibility among EU “Jungle”.
Member States for the processing of
The disappearance of the Dublin route as a
asylum applications. Whilst the system
consequence of the exit of the UK from the
does not as such deal with refugee family
EU is especially regrettable for a variety of
reunification,93 in practice it plays an
reasons. First, in contrast to the RFR route
important role in reuniting refugee families
under the Immigration Rules, the Dublin system
throughout Europe.
allowed transfer of asylum applicants to the UK
Under the Dublin III Regulation, family ties are the even when their family member there was still
primary criteria to be taken into account when awaiting determination of their asylum claim
determining which country has responsibility for (Articles 9-11). Second, the definition of the
processing an asylum application. Where a family family unit adopted in the Dublin system is in
member of an applicant for asylum is present in certain respects broader than that applicable
another EU State, the Regulation provides that for the purpose of RFR under the Immigration
the applicant should be transferred to the State Rules, and thus provided an alternative means
where their family members are located, so for reunification of dependent family members
that their claim for protection will be determined who were not eligible for RFR. Finally, and
there. Under Articles 9 to 11 of the Regulation, most importantly, the closure of the Dublin
adult applicants can join their spouse or partner route marks the end of the only possibility for
and/or their unmarried minor children. In the unaccompanied refugee or asylum seeking
case of applicants who are unaccompanied children to bring to the UK their immediate
minors, Article 8 (1)-(2) provides that, whenever family members located elsewhere in Europe.
a minor applying for international protection has
Transfers to the UK under Articles 8 to 11 of
a relevant family member (parent, guardian,
the Dublin Regulation (2015-2019)95
sibling, adult aunt or uncle, or grandparent)94
residing in an EU country, the State where those
Year Take charge requests Transfers
family members are found shall be responsible
for deciding upon the minors’ asylum claim. It is
2015 78 31
only where there are no such family members,
or it is not deemed to be in the best interest of a 2016 685 330
minor to be reunited with the family member in
question, that the application will be processed 2017 1095 295
by the State in which it was originally submitted.
2018 710 1028
The fact of being transferred under the Dublin
procedure does not grant an automatic right 2019 1050 529
to remain in the country, which still depends
upon the outcome of the applicant’s claim for In addition to the misery the loss of the Dublin
international protection. However, the very fact route will cause to refugees desperate to bring
that the asylum application is considered in their family members to the UK, it is also likely to
a country where other family members are add significant pressure on those organisations
located constitutes an important step towards which provide support with RFR applications,
family reunification. as the significant number of asylum-seekers
with family members scattered throughout
After a relatively timid start, the number of Europe who might previously have used the
individuals transferred to the UK under the Dublin process will inevitably turn to those
Dublin process rose significantly in the years organisations to navigate the complexities of the
prior to Brexit and the end of the transition RFR application process once they gain refugee
period. This was at least in part likely to have status.
been the result of wider awareness of the
 Refugee Family Reunification in the UK: Challenges and Prospects | 23

3.1.1 Refugee Family Reunion under Part who have a protection claim in their own right are
11 of the Immigration Rules entitled to apply for asylum once they are present
in the UK.
The Family Reunion route under Part 11 of the
Immigration Rules (RFR) is the most favourable The requirements to be met in order to be able
procedure for family reunification under UK law. In to sponsor RFR are relatively straightforward:
contrast to all other routes through which family all individuals who have either refugee status or
reunification may be achieved, RFR does not humanitarian protection in the UK and who are
require the sponsor to meet any kind of financial or over 18 years old are eligible to sponsor RFR.97
accommodation requirements or to prove that they The relevant status can have been obtained
are in a position to provide for the needs of their either by means of an application for international
family members without recourse to public funds protection submitted in the UK, or having
once they arrive in the UK. Further, applicants entered the UK as a beneficiary of a resettlement
are exempted from requirements concerning programme.98
knowledge of the English language. The
application is free of charge, and family members The following individuals are not eligible
of refugees coming to the UK through this route to sponsor:
are exempt from the Immigration Health Surcharge i. former refugees or former beneficiaries of
(IHS), a healthcare fee which is levied on most humanitarian protection who have naturalised as
immigration applications. British citizens;99
Family members of a refugee or beneficiary ii. family members of a refugee or a beneficiary
of humanitarian protection who are granted of humanitarian protection who have not been
permission to enter the UK through RFR are granted refugee status or humanitarian protection
given leave “in line with their sponsor”; they are, in their own right, including individuals who
therefore, not refugees in their own right and their themselves came to the UK through RFR;100
leave to remain in the UK is for the duration and
iii. minors (under 18 years of age);101
with the same conditions and entitlements as that
of their sponsor.96 Nevertheless, family members iv. asylum seekers

Table 2: Requirements for family members applying for RFR under Part 11

Children Spouse / De facto

Civil partner partner

Marriage/civil partnership/relationship is subsisting ✓ ✓

Applicant and sponsor intend to live permanently with each other as

✓ ✓
spouses/partners
Marriage/civil partnership took place before the sponsor fled country
✓ ✓
of former habitual residence
Applicant and sponsor have been living together in a relationship akin
to marriage/civil partnership for at least two years before sponsor fled ✓
country of former habitual residence

Applicant must be under 18 ✓

Applicant must have been born, conceived (or formally adopted)

✓
before the sponsor fled country of former habitual residence
Applicant is not leading an independent life and is unmarried/not in a
✓
civil partnership

No reasonable grounds for regarding applicant as a danger to

the UK; applicant would not be excluded from protection by
✓ ✓ ✓
Article 1F of the Refugee Convention if applying for refugee status
in their own right
 Refugee Family Reunification in the UK: Challenges and Prospects | 24

As regards the family members of a refugee who or have entered into a civil partnership and have
are eligible to apply through the RFR route, the formed an independent family unit
Immigration Rules are particularly restrictive. RFR are not eligible.110
is only available to the spouse, civil partner, or
unmarried or same-sex partner of a refugee,102 and Adult children, even if dependent on the sponsor,
to their minor dependent children.103 In both cases, are not eligible for RFR, although dependent adult
the family member needs to have been part of the children can apply through the more onerous
sponsor’s family unit before the sponsor fled their procedure for family reunification under Appendix
country of habitual residence (so-called “pre-flight FM. However, the Home Office Guidance indicates
family members”). that LOTR may be granted in cases concerning
adult children when
Partners
In order to be successful in their application for […] their immediate family, including siblings
RFR, the partner of a refugee needs to demonstrate under 18, qualify for Family Reunion and
that their relationship with the sponsor pre-dates the intend to travel, or have already travelled, to
moment in which the sponsor left their country to the UK; [and] they would be left alone in a
seek asylum, and that it is “genuine and subsisting” conflict zone or dangerous situation; [and]
at the time of the application. The applicant and they are dependent on immediate family in
sponsor must also demonstrate that they intend to the country of origin and are not leading an
live permanently together once the applicant arrives independent life; [and] there are no other
in the UK.104 relatives to turn to and would therefore have
For married couples or civil partners, the pre- no means of support and would likely
flight requirement means that the marriage or civil become destitute on their own.111
partnership must have been celebrated before
the applicant left their country of origin or former The pre-flight requirement also applies to children.
habitual residence to seek asylum.105 For unmarried Accordingly, only children who were born, or had
partners (including same-sex partners), the pre-flight been conceived, before the sponsor left their
requirement means that they must show that they country of former habitual residence in order to
had been living with the sponsor “in a relationship seek asylum are eligible to apply for RFR.112 The
akin to marriage or a civil partnership” for two requirement that the child be conceived before
years or more before the sponsor fled their country the applicant left their country means that any
in order to seek asylum.106 If this requirement children who were conceived in a country of transit
is not met, an application for RFR will not be (for instance in a refugee camp) are currently
granted under Part 11 of the Immigration Rules. prevented from benefitting from the simplified RFR
The Home Office Guidance, however, expressly procedure under Part 11 of the Immigration Rules.
requires caseworkers to give consideration to
Adopted children of a refugee in the UK are
any exceptional circumstances or compassionate
eligible to apply for RFR, provided that they
factors which may warrant a grant of LOTR,
were formally adopted before the sponsor left
“including whether the requirement to live together
their country of origin or habitual residence in
would have put a same-sex or unmarried couple in
order to seek asylum. The sponsor is required to
danger”.107
provide documentary evidence to establish that
Children the adoption was formalised through the relevant
In order to be eligible for RFR, the child of a refugee legal procedures in the third country.113 The
in the UK must be under 18 years of age and be requirements relating to age and dependent status
dependent upon the sponsor.108 With regard to the also apply to adopted children. De facto adoption,
age requirement, the relevant date is the time when defined as the situation in which “a child has been
the application is lodged; if a child turns 18 after incorporated into another family than the one into
that date, and whilst the application is still being which they were born, and has been cared for
processed, they are to be treated as minors for the in that family”,114 is not a relevant relationship for
purpose of the application.109 the purpose of RFR.115 Again, however, the Home
Office Guidance requires caseworkers to consider
The requirement that the child be dependent upon whether there are exceptional circumstances or
the sponsor means that children who are not compassionate factors in light of which a de facto
yet 18, but lead an independent life, are married adopted child may be granted LOTR.116
 Refugee Family Reunification in the UK: Challenges and Prospects | 25

3.1.2 Family visa applications for “other family members” – Appendix FM and Part 8 of
the Immigration Rules
Family members of refugees and beneficiaries of humanitarian protection who are not eligible to apply for RFR
using the simplified route under Part 11 can apply to join their relative in the UK through the routes regulated by
Appendix FM (“Family Members”). As explained in the relevant Home Office guidance, “[t]his route is for those
seeking to enter or remain in the UK on the basis of their family life with a person who is a British Citizen, is
settled in the UK, or is in the UK with limited leave as a refugee or person granted humanitarian protection (and
the applicant cannot seek leave to enter or remain in the UK as their family member under Part 11 of these
rules).”117
Prior to the introduction of Appendix FM in 2012, visa applications by family members, including family
members of refugees or beneficiaries of humanitarian protection who were not eligible for RFR under Part
11, were regulated by Part 8 of the Immigration Rules.118 For applications submitted after 9 July 2012, most
of these provisions have been replaced tout court by Appendix FM; nevertheless, as discussed below,
some of the provisions of Part 8 remain relevant and applicable.119
Family members who are eligible to apply for a family visa under Appendix FM include post-flight partners and
other “adult dependent relatives” (i.e., adult dependent children, siblings, parents, and grandparents). By contrast,
applications by post-flight minor dependent children and minors sponsored by a relative other than a parent in
the UK are still covered by Part 8 of the Immigration Rules.120
The process of family reunification through the routes set out in Appendix FM is more onerous than that under
Part 11. Applications under Appendix FM are subject to an administrative fee and family members are not exempt
from the Immigration Health Surcharge.121 Most importantly, sponsors must demonstrate that they will be able
to provide adequate financial support and accommodation for their family members and any dependants once
they arrive in the UK, without receiving support from the public purse. In addition, applicant partners and adult
dependent family members are required to meet a minimum language requirement.122
 RefugeeINFamily
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Applications by post-flight partners of refugees not applicable to the post-flight minor children of
and beneficiaries of humanitarian protection are a refugee who seek to join their parent in the UK
regulated by section E-ECP of Appendix FM on their own. The introductory text prior to the
(Eligibility for entry clearance as a partner).123 The heading of section E-ECC indicates that “further
category covers spouses, civil partners, unmarried provision” in respect of a child seeking to enter
partners (including fiancé(e)s or proposed civil or remain in the UK for the purpose of their family
partners) and same-sex partners.124 In order to be life may be found in Part 8. The relevant provision
eligible, both the sponsor and the applicant must under Part 8 would have been paragraph 319R,
be over 18 years old, have met, and intend to live which explicitly addressed the case of the post-
together permanently in the UK; their relationship flight child of a refugee with LLR in the UK. That
must not be consanguineous, and needs to provision, however, does not apply to applications
be genuine and subsisting, with applicant and submitted after 9 July 2012.131 Indeed, the Home
sponsor not being involved in a relationship with Office Statement of Intent that accompanied the
other persons.125 Both the applicant partner and entry into force of Appendix FM explicitly addressed
the sponsor must meet specific financial and this issue, indicating that “the provision that was
accommodation requirements.126 If the relevant previously relevant to this case was paragraph
financial requirements are not met, an applicant 319R, [whilst applicants] now must apply under
will only be eligible if their sponsor is in receipt of Appendix FM” and subject to new financial
strictly specified categories of public funds, and requirements.132
it can be demonstrated that the sponsor will be
able to adequately maintain and accommodate As such, the only provision concerning applications
themselves, the applicant(s) and any dependants.127 by children under Appendix FM is that indicated
above, which explicitly does not cover the case
As regards post-flight minor children, the framework where a child born post-flight is applying to join
is particularly complex, as different norms apply their parent with LLR in the UK on their own – for
depending on the status of the child’s parent in instance because their other parent has passed
the UK.128 In most cases, the rules contained in away. For children in this situation, the best available
Part 8 are still applicable, albeit almost always route to family reunification appears to be an
supplemented or modified by Appendix FM. application under Part 11 of the Immigration Rules,
requesting that they be granted LOTR in light of
The situation of post-flight biological children the exceptional circumstances of their case, which
of a sponsor with indefinite leave to remain is not addressed under any other provision of the
(ILR) (including as a refugee or a beneficiary of Immigration Rules.133
international protection) is regulated by paragraph
297 of Part 8, which requires the sponsor to With regard to adopted children, if the adoptive
demonstrate that they can provide for adequate parent in the UK has ILR, their situation is regulated
maintenance and accommodation for the child by paragraphs 309A-316A of Part 8.134 The child
without recourse to public funds.129 must be a minor, unmarried and not leading
an independent life, and it must be shown that
The situation of post-flight biological children he or she will be adequately maintained and
of individuals with limited leave to remain (LLR) accommodated by the adoptive parent(s).135 For
is regulated by section E-ECC of Appendix FM legally adopted children, the adoption must have
(“Eligibility for entry clearance as a child”). The occurred when both adoptive parents were resident
relevant rules set out the usual requirements as together abroad or either or both of them were
to the child being a minor, unmarried, and not present and settled in the UK.136
leading an independent life, accompanied by the
requirement that the sponsor be able to adequately The situation of post-flight legally adopted children of
maintain and accommodate the child without a refugee with LLR is not expressly addressed by any
recourse to public funds.130 However, as also of the provisions in the Immigration Rules. Given that
indicated by its heading, this section only covers provisions concerning family reunification for adopted
the situation of a child “whose parent is applying children only address the case where the parent in
under this Appendix for entry clearance or leave, or the UK has ILR, in order not to leave sponsors with
who has limited leave, as a partner or parent”. As LLR in a legal vacuum, the Home Office Guidance
such, on its face, the section only covers the case states that “if an individual who has been granted
of post-flight children whose sponsor has applied refugee status or humanitarian protection in the
for or obtained LLR as a partner or parent – not UK does not have [ILR] and wishes to sponsor an
as a refugee. As a consequence, it is therefore adopted child, the application will be considered
 Refugee Family Reunification in the UK: Challenges and Prospects | 27

under paragraph 319X”.137 As discussed below, that provide for the child’s adequate maintenance
provision in fact regulates the situation in which a and accommodation without recourse to public
child can be reunited with a relative who has LLR as funds.143
a refugee or beneficiary of humanitarian protection in
the UK. Appendix FM allows adult dependent relatives of
adult refugees or individuals granted humanitarian
The route under Part 8 is expressly stated to protection to apply for a family visa.144 Eligible
be applicable to both legally adopted children applicants are the adult parents, grandparents,
and de facto adopted children.138 However, the siblings, or adult children of the refugee or
formulation of paragraph 309A, which defines beneficiary of international protection.145 In order
de facto adoption for the purpose of application to qualify, the applicant must be in need of long-
of the relevant rules, poses some issues. In term personal care to perform everyday tasks “as
particular, the requirement that, at the time a result of age, illness or disability” and must be
immediately preceding the application, the “unable, even with the practical and financial help
adoptive parents must have been living abroad of the sponsor, to obtain the required level of care
together for at least 18 months and have cared in the country where they are living, because (a)
for the child for at least 12 months,139 will almost it is not available and there is no person in that
by definition never be met when an adoptive country who can reasonably provide it; or (b) it
parent is a refugee in the UK. This gap is is not affordable”.146 The sponsor should be able
acknowledged by the Home Office Guidance, to adequately maintain and accommodate the
which expressly indicates that cases involving de applicant without recourse to public funds.147
facto adopted children of refugees must, again,
be considered under paragraph 319X.140 As with RFR under Part 11, likewise under
Appendix FM refugee children are unable to
As mentioned above, applications by children sponsor family visa applications for their parents
who seek to join a relative (other than a parent) or other responsible adults. Although Appendix
who has LLR as a refugee in the UK are regulated FM allows parents to apply for a family visa to
by paragraph 319X of Part 8.141 In this context, no be reunited with their minor child in the UK,
distinction is drawn as to whether the relationship that possibility is only available if the child is
between the applicant child and the sponsor a British citizen or has settled status.148 Since
is pre- or post-flight. For leave to be granted refugee minors can only apply for settled status/
under this route, there must be “serious and ILR five years after they have obtained LLR as
compelling family or other considerations which refugees under paragraph 339R, in most cases
make exclusion of the child undesirable” and it is unlikely that they will still be minors at that
“suitable arrangements” must have been made point. As a consequence, that route for family
for the child’s care.142 In addition, the sponsor reunification is de facto precluded to the parents
must demonstrate that they have the means to of an unaccompanied refugee child.

Table 3: Requirements for adult dependent family members applying under Appendix FM

Must, as a result of age, illness or disability, require long-term personal care to perform
everyday tasks.

Parents and Must be unable, even with practical and financial help of the sponsor, to obtain the required
grandparents level of care in the country where they are living

Must not be in subsisting relationship with a partner unless the partner is also the sponsor’s
parent or grandparent and is also applying

Children
(18 years and older)
Must provide evidence that they can be adequately maintained, accommodated and cared
for without recourse to public funds

Siblings
(18 years and older)
 Refugee Family Reunification in the UK: Challenges and Prospects | 28

Financial and the situation in the household amounts to

being overcrowded, for England and Wales
accommodation reference is made to the Housing Act 1985,
requirements under according to which there must be a sufficient
Appendix FM: A closer look number of rooms to ensure that two persons
aged over 10 years old, of opposite sex,
Access to family reunification through and not being a couple do not sleep in the
the route provided by Appendix FM may same room; and on a calculation of the ratio
pose particular problems to refugees between the number of rooms in the house
due to the onerous financial and and the number of people living there.152
accommodation requirements which
Some flexibility in relation to financial
the sponsor must be able to satisfy.
requirements has been inserted by the
The financial requirements are particularly introduction of paragraphs GEN.3.1 to 3.3
strict for applications submitted by post-flight of Appendix FM, following the judgement
partners. At present, the sponsor and the of the Supreme Court in MM (Lebanon).153
applicant partner must demonstrate that In response to the decision, changes
they have a minimum (cumulative) gross were made in July 2017 to introduce an
annual income of at least £18,600, plus an “exceptional circumstances” clause allowing
additional £3,800 for the first dependent consideration of issues under Article 8
child and £2,400 for each additional ECHR and the best interests of the child
dependent child.149 principle.154
Where the financial requirement is not met
For cases for which the rules do not and the refusal could result in a breach of
establish a fixed income threshold, such the applicant’s, or their partner’s or child’s
as those concerning children, the sponsor Article 8 right, paragraph GEN.3.1 requires
is required to prove that they will be able that sources of income other than those
to provide adequate maintenance and listed under Appendix FM be taken into
accommodation for the applicant without account.155
recourse to public funds.
The requirement concerning “adequate
3.1.3 Leave “outside the Rules”:
maintenance” is interpreted by the Home
Office to mean that “after income tax, exceptional circumstances and
National Insurance contributions and compassionate factors
housing costs have been deducted, there Where an application for RFR or under Appendix
must be available to the family the level of FM does not meet the requirements of the
income that would be available to them if the Immigration Rules, caseworkers are required
family was in receipt of Income Support.”150 to consider whether there are any “exceptional
Although the Home Office Guidance has not circumstances or compassionate factors” which
yet been amended to reflect this, starting may justify a grant of LOTR.
from 2013, Income Support was replaced
by Universal Credit, with all applicants being The rationale for the possibility of granting LOTR
transferred to the new system by 2017. is the need to avoid breaches of Article 8 ECHR
in cases where refusal to allow family reunion will
The requirement concerning the sponsor’s result in a breach of the sponsor’s right to family
ability to provide adequate accommodation life. Exceptional circumstances are defined by
for the applicant applies equally to the Home Office as those in which the refusal of
applications under Appendix FM and entry clearance would result in “unjustifiably harsh
Part 8. In order for accommodation to be consequences for the applicant or their family” such
considered adequate, it must be owned or as to amount to a breach of the right to respect for
lawfully occupied by the family. If the family family life under Article 8 ECHR.156 Compassionate
live in a shared household, at least the factors exist where refusal would still cause
bedrooms must be for the exclusive use of “unjustifiably harsh consequences,” but would not
the family.151 In order to establish whether constitute a breach of Article 8.157
 RefugeeINFamily
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The Home Office Guidance on RFR provides a 2017 judgement of the Supreme Court in MM
few examples of exceptional circumstances and (Lebanon), the Rules were amended so as to add
compassionate factors which would justify a grant explicit references to Article 8 ECHR and the best
of LOTR. These include, for instance, the case in interests of the child principle in sections GEN.3.2
which a young adult child would be left alone in an and GEN.3.3.165 As a consequence, where a refusal
unsafe situation in the country of origin as all their of entry clearance or leave would result in a breach
immediate family is in the UK and other relatives of Article 8 ECHR, the decision-maker must now
are unable to take care of them, or the case of allow the application, and such a decision is one
unmarried or same-sex partners who have been made within the Rules. As a result, those non-
unable to live together prior to one of them fleeing standard applications which would previously
their country of residence as this would have put have fallen to be considered outside the Rules on
their lives at risk.158 Specific reference is also made Article 8 ECHR grounds, for instance applications
to the case of unaccompanied refugee children, by other dependent family members, now fall
whose parents are not entitled to apply for family to be considered within the Rules.166 The Home
reunification under any of the routes set out in the Office Guidance specifies that in cases where the
Immigration Rules.159 applicant invokes the existence of compassionate
factors not relating to Article 8 rights, the decision-
When considering whether exceptional maker still needs to consider whether exceptional
circumstances and compassionate factors exist circumstances exist for a grant of LOTR.167
in a RFR case, Home Office caseworkers are
required to follow the dedicated guidance on 3.2 Issues with the current legal
Family Policy.160 The document in question states
that in order to determine whether LOTR should
framework
be granted, consideration must be given as to
whether refusal would result in “unjustifiably harsh 3.2.1 The scope of the right to family
consequences” – i.e. consequences which would reunification: what makes a family?
be disproportionate with respect to Unsurprisingly, one of the most problematic and
considerations of public interest as per Article 8(2) contentious issues with the current RFR regime
ECHR.161 is that the only family members who are eligible
Several factors are relevant to this assessment. to apply for RFR are the pre-flight spouse and
The most significant is the best interests of the dependent children under the age of eighteen of a
child(ren) affected by the decision.162 Other relevant refugee or beneficiary of international protection.
considerations concern the possibility for the Both sponsors and advocates from the refugee
sponsor and their family to stay lawfully in another sector argue that the narrow definition of family
country; the circumstances that caused separation adopted by Part 11 of the Immigration Rules
and obstacles to the sponsor’s return to the country does not reflect the reality of life in other cultures,
of origin; any health issues of any of the family where the family unit is often intergenerational, and
members; the security situation in the country of adoption of orphaned relatives is common and
origin; the sponsor’s status in the UK; and their often informal, particularly in times of war.
attachment to any third country where the family
could live together.163 Also among the factors to
be considered are the reasons why the sponsor “The biggest problem is that the
cannot move overseas in order to be reunited with notion of family is very much an
his or her family: since the option of returning to Anglo-Saxon family model (husband,
their country of origin or habitual residence is – wife, minor children), with no
by definition – precluded to refugees, in such a recognition that children over 18
situation the presumption should be in favour of might be part of the family unit,
granting leave to enter to members of their family grandparents might still be part of
unit. the family unit.”
With regard to applications by family members (Solicitor, 19 January 2019)
otherwise than by way of RFR, Appendix FM was
introduced with the stated purpose of, inter alia,
bringing consideration of issues relating to Article
8 ECHR within the scope of the Immigration
Rules.164 Notwithstanding this, in response to the
 Refugee Family Reunification in the UK: Challenges and Prospects | 30

“Often children are brought into It’s worst for people who want to bring
families because of the death family members when a child is over 18. I
of a sibling or something – should know one man – he applied for his wife
you have to leave these children and daughter to come from Iran – she was
behind when you’ve been looking 18 years. The wife was granted but the
after them for years? It’s about
daughter was refused. But you can’t leave
relationships, it’s not necessarily
about blood, but what the
an 18-year-old girl alone in Iran – she can’t
relationship between people is.” get a job, find a flat, it’s not like that. And
(Immigration adviser, 28 April 2019)
the wife refused to leave her – so he
appealed the daughter, but by the time that
was overturned, the visa for the wife had
“I haven’t seen my mother since I run out.”
was a boy, and I will never see her (Legal director, Refugee support charity,
again. It’s too dangerous for me to 2 July 2019)
visit Iran, and
she can’t come to visit me. It makes The second category on which there was general
me very sad to think agreement among sponsors and practitioners was
my children will never meet their that of siblings, either minor or adult dependent
grandmother.” siblings under the age of 25.
(Sponsor, May 2019)
A further concern related to the case of spouses
under the age of 18, who, at present, do not fall
within any of the eligible categories for RFR. The
Among both sponsors and caseworkers, Home Office position on applications by minor
there was broad consensus that a reasonable, spouses or civil partners is that
appropriate and workable expansion of the
criteria for access to the RFR route should […] the application will be refused under
include a number of specific additions to the the Family Reunion Immigration Rules.
list of eligible applicants, accompanied by a Consideration will be given to whether there
more flexible approach to the notion of family. In are exceptional circumstances that warrant
particular, there was agreement on the fact that a grant of Leave Outside of the Immigration
the under-18 rule for dependent children should
Rules. Any grant of leave for a child who is
be changed, as it does not reflect the realities
of family life, either in the UK or elsewhere. The
in this situation, would be as a child and not
hardship faced by a young adult left alone in a as a spouse or civil partner and processed
home country which the rest of his or her family in line with the duty under section 55 [of the
has had to flee, is not, in most cases, different Borders, Citizenship and Immigration Act
from that faced by a 17-year-old, and there 2009] to consider the welfare and best
appears to be no logical justification for the interest of a child.170
current rigid and drastic cut-off at 18. One adviser
said that they had experience of situations where As noted by the ICIBI, the Home Office’s
clients had not told them about children over the response is far from satisfactory, insofar as it
age of 18 because they did not think there was unclear how a grant of LOTR “as a child and not
any chance of bringing them to the UK,168 and a spouse” and the consideration of duties under
numerous examples were given of families being section 55 would work in practice.171
divided because a parent (usually the mother)
would not leave one child over the age of 18 in In addition to these recurring concerns relating
a refugee camp in order to join a partner (and to specific categories of family members, those
possibly their other children) in the UK.169 interviewed recognised that for many refugee
families there is likely to be at least one element
that does not fit within the current rules and
that therefore any closed list approach is likely
to be under-inclusive. In this regard, there was
virtually unanimous consensus among those
 Refugee Family Reunification in the UK: Challenges and Prospects | 31

interviewed that the notion of dependence, broadly In addition, the bill would introduce in Part 11
understood, should play an important role in an additional flexible category of applicants
ensuring flexibility of the RFR system. Such an whose entry to the UK to join a family member is
approach is advocated also by UNHCR which, in justified on the basis of a range of considerations,
its 2016 comments on the RFR system in the UK, including:
suggested that a more flexible understanding of
the notion of family was needed, based on “strong - the importance of maintaining family unity,
and continuous social, emotional or economic - the best interests of a child,
dependence, though which does not require
- the physical, emotional, psychological or financial
complete dependence”.172
dependency between a person granted refugee
This is in line with UNHCR’s general understanding leave or humanitarian protection and another
of the notion of “dependency” in the context of person,
family reunification, which has been developed - the circumstances in which a person is living
over many years of working in the field. in the UK or elsewhere and any risk to that
person’s physical, emotional or psychological
The principle of dependency entails wellbeing arising from those circumstances,
flexible and expansive family reunification - such other circumstances as the Secretary of
criteria that are culturally sensitive and State considers relevant.177
situation specific. Given the disruptive Such proposals are to be welcomed, as they
and traumatic factors of the refugee radically shift the emphasis from a particular
experience, the impact of persecution genetic connection to the nature of the existing
and the stress factors associated with relationship between family members, essentially
flight to safety, refugee families are providing a clear route through which exceptional
often reconstructed out of the remnants circumstances and compassionate factors can
of various households, who depend be considered within the Immigration Rules.
on each other for mutual support and
survival. These families may not fit
neatly into preconceived notions of a
nuclear family (husband, wife and minor
children). In some cases the difference
in the composition and definition of the
family is determined by cultural factors,
in others it is a result of the refugee
experience. A broad definition of a family
unit – what may be termed an extended
family – is necessary to accommodate the
peculiarities in any given refugee situation,
and helps minimize further disruption and
potential separation of individual members
during the resettlement process.”173
UNHCR, Protecting the Family (June 2001)
This approach was reflected in a private members’
bill addressing RFR introduced before Parliament
in 2017, which, although gaining bipartisan
support, did not become law.174 A new private
members’ bill has been introduced in the House
of Lords in the current Parliamentary session and
adopts a similar approach.175 The bill seeks to
add two specified categories of eligible applicants
to those listed in Part 11, namely the refugee’s
parents and his or her dependent children under
the age of 25.176
 Refugee Family Reunification in the UK: Challenges and Prospects | 32

3.2.2 Inability of unaccompanied refugee outweighed by the cumulative effect of other

children to act as sponsor for their considerations, no other consideration can be
immediate family members treated as being “inherently more significant”.182

The most striking aspect of the UK’s current Specifically in the context of cases concerning
framework relating to RFR is that, under the applications for family reunion, in AT and Another,
Immigration Rules, unaccompanied refugee the Immigration and Asylum Chamber of the
children are unable to act as sponsors for their Upper Tribunal, having made reference to the
parents, siblings or other responsible adult. This case law of the ECtHR, concluded that, given
blanket prohibition clearly disregards the UK’s the need to guarantee adequate protection to a
international obligations, including in particular child refugee, the best interests principle weighed
those arising under the Convention on the Rights heavily in favour of permitting family reunification in
of the Child.178 the UK.183
Some of the views expressed in AT and Another
It seems … perverse that children who were subsequently criticised by the same
have been granted refugee status in the Chamber in the later decision in KF and Others.184
UK are not then allowed to bring their close Despite reaching a similar conclusion in favour of
family to join them in the same way as an permitting family reunion in the UK in the particular
adult would be able to do. The right to live case, a number of the statements of principle in
safely with family should apply to child KF and Others are disappointing. In particular,
refugees just as it does to adults” while in AT and Another reference was made to
the right to family life of both the sponsor and the
House of Commons, Home Affairs Committee appellant family members,185 in KF and Others
(2016)179 the Upper Tribunal expressly held that the duty
Although the UK’s obligations under the of the UK to respect the rights under Article 8
Convention on the Rights of the Child have not ECHR extends only to the sponsor, as they are
been directly incorporated into UK law, s. 55 of the only person involved who falls within the UK’s
the Borders, Citizenship and Immigration Act 2009 jurisdiction.186 This was held to be the case even
requires decision-makers in matters concerning when the applicant family members are minors, as
immigration to have regard to “the need to the Tribunal considered that their situation was “at
safeguard and promote the welfare of children who best of attenuated relevance”.187 This is regrettable,
are in the [UK]”. Further, the best interests of the in particular given that the above-mentioned
child principle is explicitly described as being “the guidance to the UK Border Agency on section
primary consideration” in immigration decisions 55 of the Borders, Citizenship and Immigration
concerning children in the relevant statutory Act 2009 recognizes that, although the statutory
guidance.180 duty in section 55 of the 2009 Act does not apply
in relation to children who are outside the United
The best interests of the child principle has been Kingdom,
considered in numerous decisions of the courts,
especially in determining whether interference UK Border Agency staff working overseas
with the right to family life under Article 8 ECHR must adhere to the spirit of the duty and
was proportionate in the face of competing
make enquiries when they have reason to
public interest considerations. In particular, in ZH
suspect that a child may be in need of
(Tanzania) (a case concerning a challenge to the
deportation of a child’s parent) the child’s best protection or safeguarding, or presents
interests in maintaining family life in the UK was welfare needs that require attention.188
held to constitute “a primary consideration” such
that it had to be assessed before any other factors
were considered.181 Subsequently, in Zoumbas
(another case relating to the proposed deportation
of a parent), the UK Supreme Court went further
in delineating the role of the best interests of the
child principle in Article 8 claims; it observed
that although as recognized in ZH (Tanzania),
the best interests of a child can in principle be
 Refugee Family Reunification in the UK: Challenges and Prospects | 33

A further aspect of the decision that is worthy decide the claims of children seeking international
of mention is the fact that, in contrast to AT protection before they turn 18, [and does not]
and Another, in KF and Others the sponsor had incentivise the department to address factors
turned 18 before the appeal, although he had contributing to the delay”.192 As such, “[t]he Home
still been a minor at the time of the submission of Office may well use it to downplay both the rights
the RFR applications. In the view of the sponsor, of the child and the effect of delay in reaching a
his “ageing out” had been due to delays in the conclusion under Article 8”.193
determination of his asylum claim, which was
also the reason for the submission of a formal One last point that is worth mentioning is that the
complaint by his solicitor – a complaint which Upper Tribunal, in assessing the proportionality of
had been upheld by the Home Secretary.189 The the interference with the right to family life under
Upper Tribunal acknowledged that without such Article 8, considered that the very fact of not
delays the sponsor might still have been a minor meeting the eligibility requirements for RFR under
by the time of his appeal and hence could have the Immigration Rules constituted an adverse
relied on the best interests of the child principle factor to be taken into account in the assessment
and recognized that this was a potentially of whether there has been an infringement of
relevant factor.190 Nevertheless, the decision is the right to family life under Article 8.194 Since not
disappointing insofar as the impact of the delay, meeting the requirements of the Rules constitutes
and the associated loss of the right to rely on the per se a reason for refusal of an entry visa under
best interests principle, were to a large extent Part 11, it seems redundant – to say the least
minimized, with the Upper Tribunal expressing – to include this among the reasons relevant
the view that it was a matter which did not have to whether to grant LOTR for the purposes of
a “significant impact” on its overall assessment.191 family reunion.195 This latter aspect is all the more
In this regard, the decision has been criticised on significant given that child refugees in the UK are
the basis that it “makes no criticism of the delay, prevented from sponsoring RFR, otherwise than
offers no encouragement to the Home Office to through a grant of LOTR.
 Refugee Family Reunification in the UK: Challenges and Prospects | 34

The “anchor child” myth

In its recent response to a request by the destination, and concluded that many of the
ICIBI to clarify its position on the issue of children did not set out with an idea of coming
child sponsors, the Home Office reiterated its specifically to the UK, but rather of escaping
concern that their existing situation. The fact that they had
eventually arrived in the UK was influenced
by a variety of factors, including the presence
allowing children to sponsor parents of family members, peers, experiences along
would risk creating incentives for the route, and pressure from smugglers.201 In
more children to be encouraged, or addition, a significant number of the children
even forced, to leave their family and interviewed had no desire for – or possibility
attempt hazardous journeys to the of – family reunification, but for those who did,
UK. This would play into the hands the possibility of being reunited with their family
of criminal gangs, undermining our was very important for their well-being and
integration into the UK.202
safeguarding responsibilities”.196
In the face of such overwhelming evidence
This statement is illustrative of the so-called
as to the non-existence of the “anchor child”
“anchor child” argument which has been
phenomenon, the Home Office’s continued
consistently relied upon by the UK Government
position that the choice of not allowing
as the main justification for not allowing minors
children to sponsor their family members is
to act as sponsor for family reunification.
“not designed to keep child refugees apart
The issue of “anchor children” has also been from their parents” and instead is dictated by
the subject of debate in the EU, with a call considerations relating to the need “to avoid
for information issued by the EU Parliament putting more people unnecessarily into harm’s
in 2012,197 and another, specifically as to the way”203 appears increasingly weak and difficult
existence of the phenomenon within the Dublin to sustain.
system, in 2017.
Whilst some European countries claim to
have noticed a certain trend in this sense,
particularly at the peak of the refugee crisis
in 2015-2017, the overwhelming majority
have stated that they have not witnessed
any consistent pattern.198 Similarly, in 2016,
a report by the European Committee of
the House of Lords on the situation of
unaccompanied asylum seeking children in
Europe in the context of the refugee crisis
categorically concluded that there was no
evidence provided by other EU Member
States that children had been exploited by
being sent ahead to act as “anchors” for
other family members.199
In 2019, in an effort to counter the “anchor
child” argument against allowing children
to act as sponsors, the UNHCR conducted
research into the reasons unaccompanied
children came to the UK.200 The research
examined the reasons why young people had
left their countries of origin, as well as how
they had ended up in their countries of final
 Refugee Family Reunification in the UK: Challenges and Prospects | 35

Child sponsors: A comparative only their parents.208 This trend has, however,
changed somewhat in recent years in
look at Europe response to the refugee crisis and the large
number of unaccompanied minors left alone
in war zones or stranded in refugee camps:
a number of States have gone beyond what
is strictly required by the Directive and now
allow refugee minors to act as sponsors for
applications by their parents’ dependent
children.209 This recent approach is a
recognition of the fact that making no provision
to permit applications for reunification with
minor siblings whilst at the same time allowing
applications in respect of parents may lead to
incredibly distressing circumstances in which
parents are faced with the decision of leaving
Across Europe, the overwhelming majority of
some of their children in one country in order
States allow unaccompanied refugee children
to join children in another.
to sponsor family reunification with, at the very
least, their parents, and, in most cases, certain Only two EU Member States, Ireland and
other adult relatives.204 Denmark, have opted out of the Family
Reunification Directive. However, both of those
For most EU Member States, that approach is
States nevertheless allow unaccompanied
dictated by the Family Reunification Directive,
children to sponsor family reunification with
which imposes obligations to “authorise the
their parents. In Ireland, refugees who are
entry and residence for the purposes of family
under 18 and not married can sponsor both
reunification of […] first-degree relatives in
their parents and their parents’ children.210 In
the direct ascending line” of minor refugees
Denmark, parents abroad can be reunited with
who are found within the territory of the
their unmarried minor children if denying family
Member State in question.205 The Family
reunification would constitute a breach of
Reunification Directive also requires that,
Denmark’s international obligations; admission
in these cases, reunification has to operate
is granted automatically to parents of
with no consideration of whether the relatives
unaccompanied minors who are younger than
are dependent on the unaccompanied
15, and on a case-by-case basis to parents of
minor and whether they enjoy proper family
minors aged between 15 and 18.211
support in the country of origin.206 The same
provision gives Member States the discretion Hence, even prior to Brexit, the UK was
to “authorise the entry and residence for the only EU Member State in which
the purposes of family reunification of [the unaccompanied refugee minors were
unaccompanied minor’s] legal guardian or any prevented from sponsoring family reunification.
other member of the family, where the refugee The only other country in Europe which
has no relatives in the direct ascending line or currently adopts a similar position is
such relatives cannot be traced”.207 Switzerland.212
Until recently, most EU States had
implemented only the minimum requirements
of the Family Reunification Directive and
allowed unaccompanied minors to sponsor
 Refugee Family Reunification in the UK: Challenges and Prospects | 36

3.2.3 Quality and accessibility of the law Law Commission’s report, namely suitability for the
non-expert user, comprehensiveness, accuracy,
clarity and accessibility, consistency, durability
[The Immigration Rules] impact on millions (defined as “a resilient structure that accommodates
of people each year. Yet it is widely amendments”), and capacity for presentation in a
acknowledged that the Rules have digital form.214
become overly complex and unworkable.
They have quadrupled in length in The Government committed to the revised
Immigration Rules being in force by early 2021
the last ten years. They have been
and, in line with the recommendation of the Law
comprehensively criticised for being poorly Commission, set up a dedicated committee, the
drafted, including by senior judges. Their Simplification of the Immigration Rules Review
structure is confusing and numbering Committee, mandated to consider “the simplicity,
inconsistent. Provisions overlap with accessibility and coherence of the Rules”. The
identical or near identical wording. The Committee is composed of representatives of
drafting style, often including multiple interested government entities (notably, the Home
cross-references, can be impenetrable. Office), and several external stakeholders, including
The frequency of change fuels the Law Societies of England and Wales, Scotland,
complexity.213 and Northern Ireland; the Bar Council of England
and Wales, the Faculty of Advocates (Scotland),
Law Commission, Simplification of the and the Bar of Northern Ireland, the Immigration
Immigration Rules (2019) Law Practitioners Association (ILPA), the UK Council
for International Student Affairs, Coram Children’s
In its response to the scathing criticism by the
Legal Centre and the Citizens Advice Bureau.215
Law Commission, the Government committed
At the time of writing, the review had not yet been
to a wholesale revision of the Immigration Rules
completed.
in accordance with the principles identified in the
 Refugee Family Reunification in the UK: Challenges and Prospects | 37

3.3 A legal framework in need of family. Family life is a matter of fact, not law or
biology, and a system which is genuinely focused
reform on protecting and promoting human rights should
take this into account. In that regard, the ideal
The preceding sections clearly illustrate that
course of action would be the addition to the
there is a strong need for a formal overhaul and
list of eligible applicants in Part 11 of a flexible
rationalisation of the complex network of legal
residual category, informed by a broad notion
rules around refugee family reunification. This is
of dependence. By providing a clear route for
acknowledged by a wide range of stakeholders,
application by dependent family members who
from the sponsors themselves, through legal
do not fall within one of the named categories, the
practitioners, to the Law Commission, the
inclusion of such a residual category would address
ICIBI, and the Government. Nevertheless, the
one of the main concerns of practitioners, who at
main issues that need addressing concern the
present can only submit an application by “forcing”
substance of the regime, to ensure that it is in
the boundaries of provisions or procedures
line with the UK’s international obligations and
designed for other situations. In addition, the new
international best practice.
category should ideally clearly set out the criteria
The most striking flaw of the current system is that by which the merit of applications by dependent
unaccompanied refugee children are not allowed family members other than those expressly listed
to act as sponsors in the RFR process and that should be assessed, thereby providing clear
family reunification for unaccompanied minors standards, whilst at the same time allowing Home
is only possible through a grant of LOTR. In this Office decision-makers to take into account the
regard, as also recommended by the UNHCR, it is specific circumstances of individual cases. Those
essential that the Immigration Rules are amended modifications to the Immigration Rules are much
to introduce “a routine rather than exceptional needed and should be implemented as a matter
procedure” allowing children to act as sponsors for of priority, particularly in light of the withdrawal of
RFR.216 the UK from the EU and the Dublin system and the
closure of one important avenue for the reunification
Indeed, there is nothing “exceptional” or of refugee families.
“compassionate” about the fact that a child who
is alone in a foreign country should be allowed to
be reunited with his or her parents or another adult
who is able to care for them. The Government’s
argument that children risk being sent in advance
as “anchors” for their family is not supported by
the available evidence and the experience of other
European countries. Quite apart from the obvious
observation that it is vital for the well-being and
integration of minor refugees that they be reunited
with their family, the UK’s approach to this matter
is at odds with its international commitments and
inconsistent with the approach of other European
states.
A second major issue of the current legal framework
is the restrictive approach to the notion of family
adopted by Part 11 of the Immigration Rules. The
category of family members who are eligible to
apply for RFR should be expanded to include,
as a minimum, adult dependent children and
minor siblings of a refugee or beneficiary of
international protection, as well as, ideally, their
dependent parents.
Such additions, although necessary, would not
however address the full range of situations which
may arise in refugee families, or – indeed – any
 Refugee Family Reunification in the UK: Challenges and Prospects | 38

3.4 Main findings

Recommendations
and recommendations
Main findings - Recognise explicitly that RFR is a
protection rather than an immigration
- The legal framework regulating RFR and other matter and ensure that all processes
legal routes through which refugees can be relating to RFR reflect this.
reunited with family members in the UK is
unnecessarily complex, difficult to navigate and - Simplify and rationalise the
at points internally inconsistent. Immigration Rules governing RFR and
- The fact that unaccompanied refugee children Family Member visa applications to
are unable to act as sponsors for their ensure that they are accessible and
immediate family members is inconsistent with understandable.
the UK’s international obligations, particularly
- Amend the Immigration Rules to give
those deriving from the Convention on the
unaccompanied refugee children
Rights of the Child, and is not in line with the
in the UK the right to sponsor
practice of other European States.
their parents and minor siblings to
- The list of family members of a refugee who are join them, as required by the UK’s
eligible to apply for RFR is overly restrictive and international obligations.
does not reflect the realities of many refugee
families, nor non-Western, non-European - Expand the categories of who
models of the family. qualifies as a family member for the
purpose of RFR to allow refugees in
- The residual possibility for those family
the UK to sponsor their adult children
members who do not fall within the narrow
and siblings under the age of 25, and
eligibility criteria for RFR of applying for leave
dependent parents.
“outside the Immigration Rules” is not a
satisfactory solution for applications involving - Ensure that applications for
complex and non-standard situations. dependent family members who
- There is at present no clear route in the are currently not expressly eligible
Immigration Rules for post-flight minor children for RFR are brought “within the
who seek to come to the UK alone to be Immigration Rules” by adding a
reunited with a refugee parent. flexible and open-ended category
based on a broad notion of
- The framework relating to family reunification
dependency to the existing categories
for adopted children is particularly unclear and
of family members eligible for RFR.
the different treatment of de facto and de jure
adopted children does not take into account - Amend the Immigration Rules to
the realities of many refugee families. create a clear route for post-flight
minor children coming to the UK
on their own to be reunited with a
refugee parent.

- Amend the Immigration Rules to

provide for a clear, consistent and fair
route for applications by both de jure
and de facto adopted children of
a refugee.
 Refugee Family Reunification in the UK: Challenges and Prospects | 39

4 The application process

and decision-making
Entry application form, with no adaptation made
This chapter examines the practicalities for the fact that it would be used by refugees
of making a RFR application and the and with no adjustments for the peculiarities of
decision-making process. RFR applications.219 Much of the information
requested was not set out in a way relevant for
Section 4.1 sets out the main issues with RFR applications and certain details such as
the current application system and decision- dates of birth and addresses had to be inputted
making process which have been identified on multiple occasions at different points in the
in the literature, by independent observers, process. The Visa4UK website also contained a
and which have emerged from interviews number of substantive errors which, despite the
with sponsors and service providers. Section system being operational for several years, had not
4.2 then examines recent changes and been addressed by the Home Office.220 The online
developments in the relevant Home Office application process was felt to be intimidating for
structures and processes, including the sponsors who did not understand the system, and
so-called “onshoring” of decision-making was a source of frustration for caseworkers and
on visa applications and the largely un- legal professionals.
trumpeted shift to treating RFR applications
as matters involving questions of protection, In November 2018, the online application system
rather than a strictly immigration matter. for all visas started to migrate to a new portal on
Section 4.3 seeks to identify the root causes the UKVI website.221 The Visa4UK portal remained
of many of the problems with the current open for certain countries, notably Cuba, Iran, the
RFR process and discusses the recent Occupied Palestinian Territories and Sudan, until
debate on the eradication of the “culture of late 2020. The migration process was completed
disbelief” from the UK asylum system and by early 2021, and all visa applications, including
other areas. applications for RFR, must now be submitted
through the UKVI online visa application system.
Unfortunately, no prior announcements about the
4.1 Main issues with the migration of the online application system to the
application process and new UKVI portal were made to those working in
decision-making the sector. Several of the organisations interviewed
stated that they had only found out about the
move to the new system “by accident” or through
4.1.1 Navigating the online word-of-mouth from other organisations or
application system practitioners, sometimes several months after the
Since 2014, all applications for RFR must be new online system had become operational.222
submitted through an online application system.
Caseworkers agree that there are several benefits
When the research for the present report began
of the new online application system, first and
in late 2018, the online application system was
most importantly the fact that there is now a
hosted on the Visa4UK website.217 During the initial
dedicated form for RFR applications. The major
interviews, that system came in for a huge amount
advantage of the new RFR form is that information
of criticism from virtually every caseworker and
only needs to be entered once and it is then
sponsor interviewed, with one organisation going
automatically duplicated in the relevant sections,
as far as to say that they had a standard complaint
thereby reducing the risk of errors/typos in
about the online system that they included at the
entering dates and spellings of names, an issue
beginning of every application they entered.218 The
that seems to increase the chances of rejection of
main criticism concerned the fact that the online
the application.
application form that refugees had to navigate
when applying for RFR was a standard Family
 Refugee Family Reunification in the UK: Challenges and Prospects | 40

A further feature of the new system is the “self- commercial partner, where they have the option to
service” function which allows users to upload upload documentary evidence and through which
directly to the system electronic copies of they can book an appointment for the applicant
documents and other supporting evidence, thus to submit biometrics (and any further documents)
avoiding the expense and time needed to courier at the VAC in the country where they live (or in a
hard copy bundles of documents to the relevant nearby country, if no VAC exists in the applicant’s
Decision Making Centre (DMC) and the previous country of residence).
accompanying risk that original documents might
be lost in transit. With regard to the document upload function,
in principle, the system gives the sponsor, their
In its report on the simplification of the Immigration legal representative or caseworker more control
Rules, the Law Commission noted that a number over the condition and the order in which the
of respondents to the consultation had expressed documents are presented to the decision-maker.
the view that, where there are no technical issues The system also gives instructions on what types
and the system worked as intended, the new UKVI of documents and supporting materials can be
system offers a simpler and more efficient way to submitted as evidence and how. However, most
make applications compared with the previous users interviewed commented the document
Visa4UK system.223 upload function is unnecessarily complex, not
user-friendly and overly time-consuming. The fact
Despite the fact that the new online application that users are not able to review the content of
system is in many respects an improvement on the what has been uploaded may result in the same
previous one, the caseworkers interviewed report piece of evidence being uploaded more than once,
that glitches in the programming of the website or incorrect documents being uploaded and then
and navigation errors are still far too frequent and submitted in error. The frustration of caseworkers
that the new system “isn’t as clever as it looks”. A with the poor functioning of the document upload
number of interviewees noted that, whilst some function was evident throughout the interviews,
of the problematic issues of the Visa4UK system with interviewees commenting that the software “is
have been addressed, it appears that new ones not fit for purpose”, does not appear to be set up
have been introduced. to take the high volume of documents that need
Complaints around the new system include that to be uploaded and that dealing with the upload
the application form for RFR is not easy to locate, function has become a “major time waster” for
and that it still includes several questions which caseworkers.
are not relevant to RFR cases. Other interviewees The second common complaint of those
noted that the lack of integration of the process interviewed concerns the difficulties encountered
relating to the Immigration Health Surcharge (IHS) by users in booking appointments for applicants
into the application system creates an additional, at the relevant VAC. Caseworkers have been
and unnecessary, layer of complication. Other particularly critical of the way in which the websites
practical problems identified by users include the of Home Office “commercial partners” are
need in certain circumstances to input dummy designed. In particular, users report that it is often
answers in order to move through the application very difficult, even for those with prior experience
form224 and the inability to print out the form before of similar systems, to work out how to book the
filling it in so as to discuss with and reassure the free appointments to which RFR applicants are
client before beginning the process.225 entitled, as the relevant webpages guide the users
By far the most criticised features of the new towards paying for premium services wherever
system, however, are the poor functionality of the possible.226
“self-service” document upload function and the
system for booking appointments, both of which
concern the websites of the private companies
(“commercial partners”, in Home Office parlance)
which now run Visa Application Centres (VACs)
overseas.
Once the online RFR application form has been
completed and submitted through the UKVI portal,
users are re-directed to the website of the relevant
 Refugee Family Reunification in the UK: Challenges and Prospects | 41

zones or dangerous situations may not have time

Booking appointments, it’s like a lottery, to collect supporting documents and may not
you just have to sit there and wait for realise they would be required”.229
something to come up. I often ask clients
In contrast to the reasonable approach advocated
to do it themselves, because it’s so
in the guidance, however, both sponsors and
laborious, but quite often they will pick a service providers identified the unnecessarily
priority appointment and end up being stringent evidentiary requirements applied in
asked to pay for it, and then you have to practice by Home Office decision-makers as
go back to the beginning to start again. I a major factor giving rise to difficulties with
think the process has become a lot more submission and leading to unjustified rejections
time consuming.” of applications. An asserted lack or insufficiency
(Solicitor, Law Centre, 6 April 2020) of acceptable evidence was the most common
reason for rejection mentioned
The fact that there is now a dedicated form for by the practitioners and sponsors interviewed.
RFR applications undoubtedly constitutes a great
improvement on the previous system. While the Practitioners and sponsors alike lament the
actual application form has been made simpler UK-centric and culturally insensitive approach
to complete and less prone to inducing errors, of caseworkers to evidentiary matters, whether
the online system remains virtually impossible for that involves assuming a functioning level of
most refugees to navigate on their own, and the bureaucracy in a country like Somalia or Syria,
technical issues highlighted above or completely ignoring the risks which may be
take up much-needed time for caseworkers. involved in contacting relatives remaining behind,
Whilst none of the technical problems of the new let alone the practicalities of fleeing a country in
online application system is insurmountable, haste, and not stopping to collect the necessary
the actual process of applying for RFR remains documents.
complex and time consuming.
On a more general level, the progressive Evidence is the main problem – the Home
digitalisation of the system raises serious Office expects you to have all the same
questions about exclusion and accessibility. things as though you were born here. They
Quite apart from any specific technical issues, an expect a birth certificate, passport, school
online application system is – almost by definition records. Some people don’t know where
– exclusionary of various groups, including they were born, or they just don’t go to
those who have limited access to technology school. They want proof of you sending
(particularly in countries where its use may not be money, but this is expensive and can be
as prevalent as it is in the UK), those with limited dangerous, so I send money with friends
knowledge of the English language, and the
when I know they are travelling. Also, if you
elderly.227
don’t have any documents you can’t pick
4.1.2 Evidentiary matters up money from Western Union. You have
Although there is no requirement in Part 11 of the
to prove evidence of contact – Viber,
Immigration Rules as to specific evidence to be WhatsApp – screenshots of all this and
submitted in support of a RFR application, the phone bills. I’ve seen lots of people doing
applicant and their sponsor are required to provide family reunification and the main problem is
sufficient evidence to establish that they are always evidence. The Home Office asks
related or in a relationship as claimed and, in the you for evidence as if you were a European
case of spouses or partners, that their relationship – they just don’t understand.”
is a genuine and subsisting one. (Sponsor, June 2019)
The standard of proof to be applied when assessing For some applicants, gathering evidence can be
a RFR is the civil law “balance of probabilities” particularly hard. People who are already seen
standard.228 The Home Office Guidance as stateless in the countries from which they are
emphasises that caseworkers “must be mindful fleeing may not be in possession of any form of
of the difficulties that people may face in providing State-issued identification. For instance, Kurds
documentary evidence of their relationship or the who have fled the civil war in Syria often find
fact that it is subsisting”, as “[t]hose fleeing conflict themselves in this situation.230
 Refugee Family Reunification in the UK: Challenges and Prospects | 42

The human cost of poor decision-making: BZ’s story

BZ is a Kurd from Syria. He and his wife and documents. As Kurds living in Syria, they had
three children were separated during fighting never been issued with identity documents.
at the beginning of the Syrian war. In 2015, he
BZ returned to the UK, where his solicitor told
fled to the UK. As soon as his refugee status
him he would have to find identity papers.
was recognized, BZ travelled to Turkish
Eventually, he paid a cousin to enter Syria
Kurdistan to find his family, who were in a
on the family’s behalf to try to obtain identity
refugee camp. He hadn’t seen them for three
papers for them. Tragically, his cousin was
years, and when he had made sure that they
captured and killed. BZ travelled again to
were safe, and rented somewhere for them to
Kurdistan, desperate to bring his family to the
live, he returned to the UK to begin the Family
UK, and after several months he managed
Reunion Process. After obtaining DNA test
to obtain refugee documentation for them,
results for his children, BZ returned to Kurdistan
and they were able to resubmit their RFR
to escort his wife and children to their
applications. Three months later the application
appointment at the visa centre in Erbil, fearing it
was rejected because BZ on the basis that BZ
was not safe for them to travel alone. When they
did not earn enough to maintain his family. This
arrived at the visa centre, they were not allowed
was clearly the result of an error on the part of
to enter because they had no
the decision-maker, and BZ’s solicitor appealed
the decision. On 29 May 2019, BZ travelled
200 miles to Newcastle for the appeal, sleeping
in the bus station to be sure that he would be
there on time in the morning. When he arrived
at the court the following morning, he found out
that the case had been rescheduled.
At the rescheduled hearing, which took place in
August 2020, the appeal was allowed. BZ’s wife
and children arrived in the United Kingdom later
that year, after a brutal separation which had
lasted over five years.

In the experience of both service providers and In such cases, the Home Office Guidance expressly
sponsors, birth certificates are a particularly recommends that further guidance should be
problematic piece of evidence. In many cases, sought in the relevant Country of Origin Information
whether because of the security situation, because report, which may contain an indication as to
of State breakdown, or because of people living the practice in the relevant country in relation to
as unregistered refugees in other countries when registration of births.232 However, the experience
they give birth, children are not issued with birth of both sponsors and service providers is that
certificates. For instance, in the case of South the relevant information in the Country of Origin
Sudan, when the nation initially separated from Information report is only very rarely, if ever, taken
Sudan in 2014 there was no national system in into consideration by decision-makers when
place for the free registration of births.231 In addition, deciding whether the evidence provided is sufficient
and quite apart from the situation of those living to support the application. In particular, post-dated
in war-torn areas, there are some countries where birth certificates which are issued at the request of
birth certificates are not routinely issued at birth, or the parent in order to be submitted as evidence of
are only issued if a child is delivered in a hospital. In relationship are very frequently rejected as being
these cases, birth certificates might only be issued unreliable or even forged because they are of recent
on request when a child applies for school, needs date.233
a travel document, or, indeed, when the certificate
is needed in order to support a family reunion Supplying proof of a subsisting relationship with
application. one’s spouse can also be very difficult for refugees.
When a family member has fled an immediate
 Refugee Family Reunification in the UK: Challenges and Prospects | 43

threat to their life posed by the national authorities provide evidence of continued communications or
or private actors, it is likely that the rest of their explained the reasons why communication was
family may have gone into hiding, such that it is interrupted during certain periods.
simply not safe to communicate with them. By the
In addition to the issues encountered by refugees
time the sponsor has made their way to the UK,
in producing evidence to substantiate those
claimed and received a grant of asylum and started
requirements which are expressly provided
the process of family reunification, many months or
for under the Immigration Rules, another
possibly years may have passed from the last time
issue concerns the incorrect application of the
they saw their spouse.
Immigration Rules by Home Office caseworkers.
In addition, for many, the process of seeking asylum One area in which this is evident is the insistence
takes months or even years and is a painful and by caseworkers that the application needs to
difficult experience, which leaves them emotionally evidence an ongoing relationship between parent
scarred and mentally drained. As a consequence, and child. Although this test is appropriate for a
the process may have an impact on the frequency relationship between adult partners, there is no
and the manner in which asylum seekers maintain such requirement for the relationship between a
contact with their family members abroad. One of parent and their minor child. Despite this, several of
the interviewees, who had joined her husband as an the service providers interviewed reported having
applicant, described how she had lost touch with applications rejected on that basis on numerous
her husband for many months during the two years occasions.234
in which he was seeking asylum, how they had
never spoken about that time, and how she worried DNA Evidence
that their relationship would never be the same.
DNA evidence is a particularly
Caseworkers and practitioners report that when
controversial issue for both sponsors
refugees get in touch to ask for help with their
and service providers. Applicants are
RFR application, they generally have no idea of
in principle not required to provide
the type of evidence which they will be required to
DNA evidence in support of their
submit in order to prove that they have a genuine
RFR application. The Home Office’s
and subsisting relationship with their spouse or
DNA Policy Guidance states clearly
partner. This means that often there are huge gaps
that “where applicants choose not to
in the supporting evidence, with months, and at
volunteer DNA evidence, no negative
times years, without a single piece of evidence of
inferences can be drawn from this”.235
communication.
In some circumstances, however, a DNA test
The real problem is the culture of disbelief. may be the only way to prove the parental
relationship between the sponsor and their
Refugees don’t know about it so they don’t
child. This is particularly the case when an
understand that you need to put in records application is not accompanied by a birth
of your WhatsApp chats for the last six certificate or the birth certificate has been
months. They don’t understand why they issued several years after the birth of the
have to obtain a document from what child. DNA evidence proving their relation
might be a corrupt, repressive regime, and to a common child may be useful also to
then the Home Office won’t even believe prove the existence of a family relationship
it’s a genuine form.” between the sponsor and their partner
(Solicitor, 19 January 2019) when documentary evidence relating to their
marriage has been lost, was never issued,
Despite the Home Office Guidance being relatively or simply does not exist, as is the case for
clear on this point, many of the interviews with many customary marriages.
sponsors and caseworkers point to instances
where the guidance was ignored, and applications Up until 2014, the Home Office
were rejected out of hand because of a lack of commissioned and funded DNA testing for
evidence of a subsisting relationship. This was the those RFR cases in which doubts existed
case even when the statements/representations as to the parental relationship between the
accompanying the application explained at length sponsor and the applicant. In June 2014, as
the reasons why it had not been possible to
 Refugee Family Reunification in the UK: Challenges and Prospects | 44

part of a more general cost-cutting exercise relevant DNA evidence is to the rejection or
and with the stated aim of bringing RFR acceptance of applications.
applications in line with other immigration
applications, the Home Office stopped that DNA tests usually cost in excess of
funding. £400 for the sponsor to prove a single
relationship; the cost increases with each
The detrimental impact of these changes additional test required. Even when EFC
upon the family reunification process has is obtained, the sum allowed in respect of
been highlighted by the ICIBI, who noted disbursements for an initial RFR application
that the effect of the change in question barely covers the cost of a DNA test in
respect of one child. Following the change
[…] has been to delay issuing entry of the rules on the commissioning of DNA
clearance to applicants who qualify for tests in 2014, some refugee charities have
Family Reunion. Prior to June 2014, negotiated agreements with DNA testing
providers which guarantee a significantly
ECOs were able to commission DNA
discounted rate for clients referred by the
tests and did so routinely for
charity.237 For most refugees, however,
applications, including minors, that did even this discounted price constitutes a
not provide sufficient documentary significant expense at a time of extreme
evidence in support of the claimed financial vulnerability.
relationship. Testing was often used
with Somali and Eritrean nationals, for This leaves many refugees in a situation
where they have to choose between
example. Since 2013, refusal rates for
paying for a DNA test up-front, in the hope
Somali and Eritrean applicants have
of securing a quick and positive outcome
doubled, and while other factors may for their application, or taking a gamble on
have played a part, it is reasonable to the fact that the documentary evidence
assume that the change to DNA submitted will be adjudged to be sufficient,
testing has been a major cause.236 thereby risking delays in the arrival of their
family and possibly having to pay a solicitor
Service providers likewise report that an additional fee for resubmission of the
refusals justified on the basis of a application.
lack of evidence of parental relationship
increased markedly since the responsibility There was unanimous consensus amongst
for bearing the cost of DNA testing shifted the service providers and practitioners
from the Home Office to sponsors/ interviewed that the financial burden
applicants. relating to DNA evidence should be
borne by the Home Office, rather than by
Admittedly, in accordance with the financially vulnerable applicants, or the
guidance, the failure to submit DNA charity sector. The ICIBI’s opinion on this
evidence cannot as such be regarded as point remains resolute:
a ground for rejection of an application
for RFR. Anecdotally at least, however,
it remains the case that in cases where If there is one clinching piece of
documentary evidence of familial evidence that will decide whether or
relationship is lacking or weak, the not that child is related to that adult,
approach of Home Office decision-makers and the Home Office want that piece
is such that, without corroborating DNA of evidence, then the Home Office
evidence, such applications are likely to should not only facilitate it, but pay
be rejected. Unfortunately, clear statistical for it.”
evidence in this regard is lacking, as the
incidence of submission of DNA evidence (ICIBI, 24 July 2020)
is not recorded by the Home Office in a At present, however, the burden of providing
way that makes it possible to assess how and paying for DNA evidence still remains
 Refugee Family Reunification in the UK: Challenges and Prospects | 45

a family where the application for the refugee’s

upon the sponsor and the applicant; the spouse had been granted, but those of their three
Home Office has recently reiterated its children were rejected, as two of the children
position that it “cannot mandate applicants were adopted and one had been judged by the
to provide DNA evidence to prove a family Home Office caseworker to be over eighteen. The
relationship and is not responsible for partner had come over to the UK and the children
meeting the costs of DNA tests”.238 had stayed behind whilst the refusal decision was
appealed. Because the case had taken so long
A further challenge results from the to come to court, upon appeal the Home Office
introduction by the Home Office in tried to argue that the family had lost its cohesion
March 2020 of a new requirement in its due to the fact of having been split up. Both
policy on DNA tests, according to which cases were subsequently overturned on appeal.
photographic identification must be A further organisation reported that a case had
produced and a copy taken during sample been refused because the decision-maker “did not
collection. If this is not done, there is a appear to know the difference between Kenya and
chance that the DNA evidence may be Sudan.”
rejected.239 This potentially constitutes a
significant obstacle, particularly for those
applicants who do not possess passports “For the application, I had to pay
or national ID cards, and are unable to £500 – by mistake the Home Office
obtain them.240 refused me because on “who are
you going to live with” there is no
option for “father”, so I put “other
4.1.3 The quality of decisions relative”. And then the Home Office
said you’re not the father because
Concerns around the transparency, quality and you put “other”. So I am applying
predictability of the Home Office decision-making again – my solicitor says it’s quicker
process have been raised by independent and cheaper [than appealing]. I have
observers and emerge clearly from interviews with to pay the solicitor an extra £200
practitioners and service providers. and we will send the DNA tests again
In his 2016 report, the ICIBI noted that and send them a screenshot of the
website.”
[… ] a significant number [of refusal (Sponsor, 14 June 2020)
notices] did not use plain English, used
irrelevant or incorrect ‘cut and paste’
paragraphs from other notices, or failed to All of the service providers interviewed had
acknowledge positive evidence provided experience of similarly flawed decisions being
by the applicant, and were therefore not overturned on appeal on a regular basis.
balanced or helpful in terms of Appealing a rejection can take between 9 and 12
understanding why the application had months as well as incurring significant additional
been refused or what more evidence might costs for sponsors, and leaving applicants living
be required to support in situations which are often unsatisfactory and
any reapplication.241 sometimes dangerous. In many cases, advisers
stated that, if they disagree with a reason for
Inconsistency in decision-making and the rejection, they will often simply resubmit the
poor quality of refusal decisions were regularly same application based on the fact that the
flagged as an issue by interviewees, with one decision-making process is so arbitrary that an
solicitor commenting that sometimes reasons for identical application may succeed if assessed
rejection “verge on the absurd”. One organisation by a different caseworker, or simply by the same
reported how the Home Office caseworker had caseworker on a different day. One sponsor
photocopied the documents submitted in support explained how his legal adviser had re-submitted
of the application, returned the originals rather his application with a screenshot demonstrating
than the copies and then rejected the application the Home Office’s error at an additional cost to
because the evidence provided was insufficiently the sponsor of £200. The second application
legible. Another organisation reported supporting was successful, but this case was particularly
 Refugee Family Reunification in the UK: Challenges and Prospects | 46

concerning as the sponsor’s daughter was RFR applications in complex cases in the full
approaching eighteen at the time, at which point expectation that they would need to take them to
she would have been deemed ineligible and appeal.
would have had to rely on the use of exceptional
and compassionate circumstances.It is of course This perception of those working in the sector is
possible that caseworkers remember only the confirmed by the ICIBI. In his first inspection of the
difficult cases, the ones that took most work or RFR system, the ICIBI was particularly critical of
were most distressing, rather than the run-of- the way in which ECOs dealt with cases potentially
the-mill cases that were granted without incident. implicating exceptional circumstances and
Nevertheless, there was a consistent number compassionate factors242 and recommended that
of stories of cases which had been refused for the Home Office should issue “clear guidance and
no apparent reason, most of which were then ensure consistent application by decision makers
overturned, and leave granted, on appeal. of ‘exceptional circumstances’ or ‘compassionate
factors’”.243
As discussed further below, one of the main
obstacles when trying to provide an objective In response to the criticism by the ICIBI, in July
assessment of the quality of the Home Office 2016 the Home Office updated the guidance
decision-making relating to RFR is the lack of on Family Reunion to clarify the required
published data in respect of refusals of RFR approach.244 In his reports on the 2017 and 2018
applications, and numbers of grants of LOTR, re-inspections of RFR, the ICIBI found that the
re-submissions or appeals which is clearly updated guidance “had had some effect” and
disaggregated. Until the Home Office publishes that caseworkers were “alive to and considering”
such data, it will remain difficult to get a clear idea exceptional circumstances and compassionate
of the number of refusals of poor quality, which are factors.245However, he also noted that
either subsequently overturned on appeal, or are
granted upon re-application. Accepting that applying essentially subjective
judgements to complicated family situations
4.1.4 Dealing with complex and non- is an inherently difficult business, it is
standard applications important that the Home Office does what it
Whilst the issue of the poor quality of decisions can, including perhaps seeking expert advice
on RFR applications appears to arise even with when assessing the vulnerability of
regard to relatively straightforward cases, the applicants who fall outside the Immigration
caseworkers and practitioners interviewed, as Rules, to ensure that its decisions are
well as independent observers, are particularly informed and sound.246
critical of the poor quality of decisions concerning
complex and non-standard applications. Despite that relatively positive assessment by
the ICIBI, caseworkers and sponsors continue to
As discussed in section 3.1.3, where an application experience real problems with complex and non-
for RFR does not meet the requirements of the standard applications, particularly those involving
Immigration Rules, the Home Office decision- dependent children over the age of 18, minor
maker should consider whether there are siblings and de facto adoptions.
exceptional circumstances or compassionate
factors which warrant a grant of LOTR. Such
consideration should be undertaken by the At ECO level, exceptional circumstances
decision-maker proprio motu on the basis of and compassionate factors are just
the evidence provided, without the need for ignored. Any form of human rights
the applicant to expressly request that leave be assessment is generally ignored – in an
granted outside the Rules. application where we were quoting that,
However, virtually all those interviewed have [we] would ask that the case is reviewed
criticised the inconsistent approach of Home by an Entry Clearance Manager before
Office decision-makers to determination of the decision is issued. Again, we haven’t
the existence of exceptional circumstances really seen a difference with onshoring.”
or compassionate factors. Indeed, the default (Solicitor, Law Centre, 12 March 2020)
position of the practitioners and caseworkers
interviewed appeared to be that they made initial In his most recent report on RFR, the ICIBI
revisited the question of the use of exceptional
 Refugee Family Reunification in the UK: Challenges and Prospects | 47

circumstances and compassionate factors by applications were transferred to the team

Home Office decision-makers.247 The ICIBI, whilst in Sheffield, the decision-making process
confirming the view expressed in his interim was taking longer, and that “[i]t is very very
report that there appears to be a greater use and common now for decisions to take longer than
understanding of exceptional circumstances within the published service standard of 12 weeks.
the team of caseworkers based in Sheffield, Sometimes many months more”.250 If a refusal
found the updated guidance around the matter is appealed, the appeal decision can take up to
to be “dense and often opaque”248 and therefore twelve months. For this reason, and as a result of
inaccessible to sponsors and applicants. The the additional costs involved in making an appeal,
report further commented that: caseworkers often either resubmit the application
without appealing the refusal decision, or in any
Stakeholders and others such as legal case resubmit the application at the same time
representatives, who regularly support family as appealing.
reunion sponsors and applicants may,
through practice, be better able to navigate 4.2 Positive developments and
and interpret the guidance, and also to apply remaining issues
any learning from refusal notices, but without
any sense of certainty.249 4.2.1 The onshoring of decision-making
As discussed in the previous sections, a common
An example of inconsistency complaint from those working in the sector is that
decisions on RFR applications are inconsistent and
in the application of unpredictable and refusals are poorly motivated.
compassionate factors
One obvious reason for this lack of consistency –
MN fled from Syria leaving his wife, albeit not a justification – was the fact that, until
fifteen year-old son and twenty year-old very recently, RFR applications were processed by
daughter there. entry clearance officers (ECOs) based at overseas
visa centres (Decision Making Centres – “DMCs”).
As soon as he received refugee status, he ECOs had little specialist training in asylum and
started the Family Reunion process. On the protection matters and were expected to make
first attempt his wife and son had their visas decisions on a wide variety of visa applications, the
granted but his daughter’s application was vast majority of which were immigration decisions,
rejected because she was over eighteen. with RFR being the only protection matter. In
MN and his wife were faced with a difficult addition, ECOs were often not able to access the
decision about how to manage this situation. documentation relating to the sponsor’s asylum
They were told that an appeal for his claim. Communication with overseas DMCs was
daughter would take up to nine months, extremely difficult, with sponsors and caseworkers
but that his wife’s visa would expire in 28 in the UK reporting having serious difficulties trying
days. They decided that his wife would to make contact with decision-makers.251
remain in Syria with his daughter and his
son would travel to the UK alone. They then Against this background, the “Network
re-submitted the application for his wife and Consolidation Programme” undertaken by the
daughter, which was accepted, and the Home Office in recent years appears to have
family was reunited three months later. MN resolved some of the issues with the efficiency of
was astounded that the same application the decision-making process. The programme
which had been rejected six months consists in the restructuring of the network of
previously had been successful. DMCs responsible for processing visa applications
and the progressive transfer of most visa
processing and decision-making activities to
thematic teams in the UK (a process referred to
Several interviewees, both from organisations as “onshoring” by the Home Office).252 As already
and sponsors, also mentioned the length of noted, the process also involved the outsourcing of
time that it took for applications to be decided. the collection of biometric data of visa applicants
Several caseworkers have indicated that, as and visa issuing to commercially-run Visa
the onshoring process progressed, and more Applications Centres (VACs).
 Refugee Family Reunification in the UK: Challenges and Prospects | 48

In the context of the onshoring process, starting their appointment. For instance, for applicants in
from 2018, decision-making for RFR visa Somalia, attendance at the nearest VAC, which is
applications has been progressively transferred to located in Nairobi, involves a journey of hundreds
a dedicated team of decision-makers within the of miles.
Asylum Directorate, based in the DMC located in
Sheffield.253 The onshoring process for RFR was As noted above, an issue identified by both
completed in January 2021 and all applications caseworkers and sponsors is the difficulty in
are now processed by the Family Reunion team in booking free appointments (to which RFR
Sheffield.254 applicants are entitled) through the website of the
commercial partner operating the relevant VAC
In 2018, when the shift to Sheffield first began, the and inappropriate up-selling of services in relation
team of caseworkers dealing with RFR applications to appointments. Other recurrent complaints
was relatively small, with only four posts at relating to the websites of commercial partners
Executive Officer level, and a Senior Executive concern the poor functionality of the system for
Office, with support from other specialist staff. As uploading documents (which is different for each
the workflow increased, the number of decision- private provider), and the incorrect specification
makers rose to eight and, by June 2019, it was a of the documents required for the appointment.
23-strong team. There is also an administrative Inappropriate provision of advice and biometrics
team, based in Solihull, which support the work.255 not being taken properly are other complaints
which have been raised by users.259
The move of the decision-making process away
from the hands of ECOs based at overseas DMCs Applicants and caseworkers also report problems
was something that both campaigners and the with accessing the VACs in order to attend their
ICIBI had long been asking for. The common view appointment. In particular, there have been cases
was that, although decision-makers located in the in which VAC staff failed to understand that RFR
countries where the applicant family members live applicants, who are often themselves refugees
potentially have the advantage of local knowledge or internally displaced, may not possess travel
and, at least in theory, the possibility to interview documents and have denied access to the VAC
applicants, it is preferable for decisions to be on this basis. Further, refugees and case-workers
made by specialised decision-makers who have reported cases where family members attending
access to the sponsor’s asylum interviews, and appointments at VACs have been incorrectly
in a situation where there are quality assurance charged for services, either because VAC staff
processes in place and the means to ensure were unclear that RFR applications were free of
uniformity of decision-making.256 charge, or because corrupt members of staff
were asking for payment in order to expedite the
Whilst the network consolidation programme has process.260
not been free from criticism,257 the onshoring of
RFR applications has undoubtedly brought about A recent report published by the British Red Cross
significant practical improvements. However, as highlights the issues facing RFR applicants and
with any such complex mechanism, new problems looks at the journeys and experiences outside the
have been thrown up by the process, in addition UK.261 Issues identified include the costs involved,
to some pre-existing issues which are yet to be and women and children having to travel alone,
successfully resolved. crossing borders and having to make multiple
journeys to reach VACs. The report also identifies
As issue of primary and immediate concern for the scale of this problem, in that two thirds of the
most of those interviewed is the operation of the RFR applications made in 2019 came from four
commercially-run VACs which have replaced States (Eritrea, Sudan, Iran and Syria). There are
overseas visa sections. Although VACs do not no VACs in Syria and Eritrea so applicants need
undertake decision-making on visa applications, to cross international borders, whilst travel within
their staff still perform immigration functions, much of Sudan can be extremely risky, including
including collecting biometric data of applicants necessitating the use of smugglers. The report
and issuing visas. VACs are all run by one of makes a series of recommendations to the Home
two commercial companies and are not present Office including that there should be flexibility
in all countries.258 This has led to problems for in acquiring biometrics from RFR applicants,
applicants in countries where there is no VAC, and only asking family members to travel once
who have to make an expensive, and sometimes their application has been granted. The report
dangerous, international journey in order to attend also emphasised the vulnerability of many of the
 Refugee Family Reunification in the UK: Challenges and Prospects | 49

applicants, showing that eight out of ten of those concrete impact on the quality of RFR decisions.
making applications are women travelling alone, When asked about his assessment of the outcome
children travelling alone or women travelling with of the process in July 2020, the ICIBI said that
children, and that of those interviewed only 24% he was cautiously optimistic, and that he felt
were living at home in a stable or non-conflict area. that decisions on RFR were now being taken by
“the right people”. This positive assessment was
The British Red Cross report has added weight confirmed in the ICIBI’s most recent report, where
to the evidence that the use of the VACs has the ICIBI noted that
significant drawbacks for RFR applicants (and
quite possibly for other applicants). In its 2020 By comparison [to the team in Pretoria],
report on RFR, the ICIBI noted that there was Asylum Operations (Sheffield) showed
“little sense that the Home Office regarded VACs
more awareness of the nature of these
as anything more than a conduit for applications
rather than seeing them as a key actor in the
applications and greater sensitivity. This
family reunion process” and noted the need for was reflected not just in the grant rates
a separate focused inspection of the functioning (54% for Pretoria and 80% for Sheffield),
of the VACs and how their operation “affects but also in the quality of the decisions and
the overall process of applying for a visa from how refusals were explained, and in the
overseas”.262 In response, the Home Office has extent of stakeholder engagement.265
committed to additional training for staff at VACs
and has stated that it would keep the “footprint” of The views of the practitioners interviewed on
the VACs under review, but also insisted that it had whether the onshoring and the move to the asylum
adequate monitoring and evaluation systems in directorate have led to better quality decisions
place to ensure that the commercial partners were differ quite widely. Some service providers have
fulfilling their contractual obligations.263 indicated that there is some anecdotal evidence
of better-quality decisions coming out of the new
4.2.2 The impact of the onshoring process team in Sheffield, including, according to one of the
on the quality of decisions interviewees, better consideration of exceptional
The move of decision-making activities relating circumstances and compassionate factors. Other
to RFR to a dedicated team within the Asylum practitioners and caseworkers, however, were
Directorate signals a welcome and much needed adamant that there had been no improvement
shift towards treating RFR as a protection matter in the quality of decisions after RFR applications
rather than an immigration route. The members have been moved under the responsibility of the
of the team now working on RFR applications are Asylum Directorate. Only one organisation said
cross-trained to work in other areas of asylum and that they had seen a “dramatic improvement”
international protection – including initial screening since onshoring, and that further evidence and
and substantive asylum interviews – and are not clarification was asked for more often than had
involved in visa decision-making in any other part happened previously.
of UKVI. They attend thorough training on refugee In the initial round of interviews carried out shortly
family reunification, which includes modules after the start of the onshoring process, several
on Part 11 and other relevant sections of the interviewees stated that it had become much
Immigration Rules, LOTR and supporting evidence, easier to contact Home Office caseworkers about
amongst other areas.264 their client’s cases and that caseworkers were
Decision-making is likely to be more consistent prepared to come back and ask for additional
if all decisions are taken in the same place by evidence or clarification, rather than simply
caseworkers who have received identical training. rejecting cases out of hand. This initially positive
In addition, having the whole process under assessment has, however, subsequently been
the leadership of one senior civil servant should caveated by some organisations, which indicated
facilitate monitoring and lead to better quality that frequent personnel changes, the growth in
control. size of the Sheffield team and increased workload,
together with the fact that the administrative team
Despite the potential of the onshoring of decision- is based in Solihull, are increasingly resulting in
making to improve the quality of decisions on RFR miscommunication and delays.266
applications, as yet there appears to be limited
evidence that the onshoring process has had any In addition, several organisations expressed their
 Refugee Family Reunification in the UK: Challenges and Prospects | 50

disappointment about the fact that decision- many applications are granted LOTR, and
makers were still not making use of the possibility to how many refusal decisions are overturned on
interview sponsors, something that they had hoped appeal or are successful on re-submission. The
would become part of the process as a result of ICIBI has repeatedly criticised the absence of a
Network Consolidation. Concerns in this regard meaningful culture of monitoring, evaluation and
have also been expressed by the ICIBI, who in his learning within the Home Office,268 including in
most recent report on RFR indicates that, out of his most recent report on RFR, where he again
176 applications reviewed, in only one instance recommended that the Home Office should
had there been an interview conducted.267
[e]nsure that Management Information […] in
respect of family reunion applications is
“It’s a real struggle with the data sufficient not just to support the efficient
– the Home Office – their systems processing of applications and to assure
are pretty hopeless and antiquated, decision quality, but also to provide insights
and need replacing, but the training
into the profiles and circumstances of
and expectations for quality and
recording are not good enough.
applicants, the reasons why applications
Even if you get good IT that is succeed or are refused, and any trends, in
suited to the task, if the people order to check that both the operational
you’re relying on to input don’t have response and the underpinning policies are
an appreciation of the need for fit for purpose.269
accuracy and good reporting then
you’re not going to get good data 4.2.3 Formalising the link between the
out.” asylum process and Refugee Family
(ICIBI, 30 March 2020) Reunion
A further issue highlighted by practitioners as one
of the causes of the poor quality of decisions in
respect of RFR is the disconnect between
The fact that RFR applications are now processed the sponsor’s initial asylum process and the
by caseworkers who are trained in asylum and subsequent processing of applications for RFR.
protection matters, whilst a marked improvement The lack of inter-connection between the asylum
on having applications processed by non-specialist process and that for RFR has important and
ECOs at overseas locations, is not in itself a negative consequences upon the latter, first and
guarantee of good quality decisions. Indeed, the foremost with regard to evidence gathering and
Home Office’s own quality assurance process its availability to decision-makers.
found 24% of the asylum decisions sampled for
2016-17 to be below “satisfactory”, and one in three In theory, the records of the sponsor’s screening
of the decisions sampled by the ICIBI inspectors and substantive interview during the asylum
during the most recent inspection of the asylum process should contain information which is
casework in 2017 were classed as “needing relevant for any subsequent RFR application,
improvement”, with errors identified including
failure to adequately consider material facts and/ “What really struck me in 2016 was
or the credibility of the applicant. that the RFR cases were being
managed by the visa section like
Having to rely upon anecdotal evidence in order any other visa application and
to assess whether, and to what extent, the recent were being rejected for the sort
changes to the Home Office decision-making of reasons that you might reject a
processes have had an impact on the quality of visit visa. It seems to me that the
RFR decision is admittedly far from satisfactory. whole process has been put in the
Unfortunately, however, as already noted, there wrong place – it shouldn’t be a visa
is currently no publicly available data about decision; it should be an extension
the number of applications made for RFR, as of the asylum process.”
opposed to the number of visas granted (in (ICIBI, 24 July 2019)
contrast to the statistics for asylum applications,
for example), no means of ascertaining how
 Refugee Family Reunification in the UK: Challenges and Prospects | 51

such as the names and dates of birth of the The practice of asylum caseworkers with regard to
sponsor’s spouse and children and other close the gathering of information which may potentially
family members. However, one of the issues be relevant for a claimant’s subsequent RFR
highlighted by the ICIBI in his first inspection of the application appears to have improved, and both
RFR system was that Home Office caseworkers the ICIBI and service providers confirm that,
did not systematically capture relevant information in most cases, details of the sponsor’s family
concerning family members during either the members are now appropriately captured and
initial or substantive asylum interview, with the recorded during interviews.273
consequence that those details were not then
available to the decision-maker responsible for the Whilst this may be the case, none of the refugees
RFR application.270 interviewed recalled having been told at the
time of their substantive asylum interview that
A further related problem identified by practitioners they would have been able to sponsor family
is that the documentation relating to the sponsor’s reunification once they had obtained refugee
asylum interviews was in the past not easily or status. Similarly, none recalled the Home Office
quickly available to the decision-maker responsible caseworker explaining to them that details of their
for the refugee’s RFR application. In that regard, family provided during the asylum interview might
one of the obvious advantages of the onshoring be relevant and have an impact upon future family
of RFR applications and the transfer of the reunification applications. Many sponsors stated
decision-making process under the Asylum that they believed that the family reunification
Directorate is that it should now be simpler, and, process would be instituted in parallel with the
more importantly, quicker for the caseworkers asylum process and that they were shocked
responsible for processing RFR applications when they discovered that there was a separate
to access the documentation relating to the application process which they themselves would
sponsor’s asylum claim as needed. have to institute once they had obtained refugee
status. Many had heard about the possibility of
With regard to the accuracy and level of detail applying for family reunion through community
of the information captured during the sponsor’s contacts, rather than through official channels.
asylum interviews, the Home Office Guidance
on Substantive Asylum Interviews was amended Since the omission of the name of a family
shortly after the publication of the ICIBI report member from the records of asylum interviews
in 2016 to include a section on Family Reunion may be seized upon by those deciding upon
which, inter alia, reminds the caseworker of a subsequent RFR application as a reason for
the importance of “obtain[ing] full details of refusal, accurate recording of such information
the claimant’s partner and children during the at the stage of consideration of the asylum
asylum process so that well informed and prompt application is crucially important. Accordingly,
decisions can be made on any subsequent family asylum caseworkers should be required to provide
reunion applications under Paragraph 352A of asylum seekers with all relevant information
the Immigration Rules”.271 The guidance further as a matter of course during the substantive
notes that the caseworker “must also be aware interview. In addition, asylum seekers should be
that there may be other family members who were given information about the RFR process at the
dependent and living as part of the family unit time of the asylum interview, and they should be
before the claimant left and where this is the case clearly informed of the reasons why it is important
details should be recorded”.272 to name every dependent family member they
may later try to bring over by way of RFR. They
“It seems to me that while someone should also be made aware of the importance
is going through the asylum process of collecting and/or retaining evidence in order
… there is an obligation there to to support their RFR application, together with
ensure that all the information that clear guidance of what will constitute acceptable
will be needed at any later stage evidence. Ensuring that the asylum process is
should be recorded during that closely aligned with and anticipates the RFR
process, not just for the claimant process is a relatively simple measure which
but also for dependents.” could bring about significant improvements with a
minimal outlay of resources.
(ICIBI, 24 July 2020)
 Refugee Family Reunification in the UK: Challenges and Prospects | 52

“Ghosting” of RFR applications: A simple solution

for a complex problem?
Several of the practitioners interviewed asking the questions and where the
suggested that the legal process leading to information may go. […] The idea of
family reunification should be initiated at the “ghosting” is easy to model, but hard to
same time as the asylum process, in a process implement”.276
which is sometimes referred to as the “ghosting”
of RFR application.274 The refugee status determination process
has been complicated somewhat by the
Through the “ghosting” process, Home recent introduction of the Preliminary Interview
Office caseworkers would collect all relevant Questionnaire (PIQ). The questionnaire has to
details about the refugee’s family members be completed within 20 days of making a claim
overseas during the initial and substantive for asylum – a point at which many asylum
asylum interviews. In the same context, the seekers do not yet have a solicitor, or know
individual claiming asylum should also receive anyone who might be able to help them. The
clear information on the family reunification 13-page form asks detailed questions about
process. This would include advice about the an applicant’s spouse, including when and
evidence which is required to support a RFR where they were married, the date on which
application and the importance of collecting and they were last seen by the applicant in person,
retaining such evidence. Wherever possible, the and the date on which the applicant was last
initial draft of the application for RFR should be in contact with them. In addition, it asks an
prepared at the same time as the application applicant to provide details about their children.
for asylum. If the application for refugee status These details can of course be used to validate
is successful, the RFR process would then both the substantive asylum interview and any
proceed as a further stage, without the need subsequent RFR application.277
to initiate a completely different process. Some
organisations go as far as to advocate that, once Currently, as a new asylum seeker in the UK, in
refugee status is obtained, the family members order to ensure that they have the best possible
of the asylum applicant could then, subject to chance of in due course being reunited with
a DNA test commissioned by the Home Office, their family members, an individual will have to
automatically be granted entry clearance.275 mention his or her family members and their
details in a consistent manner at three different
Although this appears to be a simple answer to a formal, and possibly intimidating, processes
complex problem, it is not without its drawbacks. during the period immediately after their arrival.
As one RFR clinic supervisor, who had been Many caseworkers have experienced the
involved in discussions with various prominent difficulty of trying to explain on an application
organisations in the sector around this idea, for RFR why a sponsor did not mention their
noted, spouse in an initial asylum interview which took
place immediately after arriving in the country.
Reasons could include a lack of understanding
the sticking point was – and I guess still
of the process, fear for family members’ safety,
is – how do you ask a newly arrived, poor communication or simply exhaustion.
possibly ill, bewildered and confused The implications of such situations would have
asylum seeker intimate details about to be carefully thought through in the case of
their family members, especially when introduction of “ghosting” for RFR applications.
they may have had no proper pre-
interview legal advice, there is no
statement prep and they are (quite
legitimately, given some of the countries
they travelled from and through)
frightened to give any details away,
unsure of who to trust and even who is
 Refugee Family Reunification in the UK: Challenges and Prospects | 53

4.3 Tackling the problem at its Office being pervaded by a culture which views
visa applicants in general, and asylum seekers in
roots: the need for a paradigm particular, as untruthful. Most of those interviewed
shift in the approach to were adamant that the “culture of disbelief” within
Refugee Family Reunion the Home Office is among the deep-seated
causes – if not the principal cause – of much of
Formally, the Home Office has been responsive to the misery experienced by refugees during the
the criticisms and recommendations made by the family reunification process.
ICIBI and by organisations in the sector, including
by revising its guidance to decision-makers so
as to take account of the concerns expressed by “The culture of disbelief is even more
stakeholders.278 However, as noted by the ICIBI, important because the Home Office
“[a]ssuring the guidance is correct is only a part don’t even follow their own
of the solution.” 279 In this regard, interviewees guidance. If they did, it would be
were virtually unanimous in noting that the fact quicker and easier and you wouldn’t
that the relevant Home Office Guidance appears have to appeal.”
to reflect good practice is in no way a guarantee (Solicitor, 19 January 2019)
of the quality of actual decisions.

“You can find all these lovely “The whole system is just so hostile –
things in the guidance about “we there is so much uncertainty and lack
understand that refugees may not of clarity. It’s really damaging to
have documents, we can take other the family.”
evidence like if it’s mentioned in the (Caseworker, 19 September 2019)
screening interview”, but at the end
of the day it’s not the guidance it’s
the people. ” “It’s really easy to say “bring back
(Solicitor, 19 January 2019) legal aid”, but that wouldn’t make
much difference – it’s such a small
amount of money, there wouldn’t
“[…] in terms of fairness and be enough people doing the work
efficiency, it’s the training and – these firms need to make a profit
application of the law. It’s not the and for me it’s about much more
rules and the guidance, it’s people than that – it’s about the whole
enforcing the rules. Over and over system, it’s just fundamental – a
again – they don’t have to pay fines part of how we treat refugees. I
or get punished, they just ignore the would go so far as to say that it’s
rules over and over again.” part of the hostile environment.
(Caseworker, 2 July 2019) It should be treated the same as
resettlement, the family arrive and
there’s a house for them and their
BRP card is ready – it should be a
The general sense amongst those working in the welcome.”
sector is that, regardless of any formal guidance (Caseworker, 28 April 2019)
and official statements, the decision-making
process is inherently flawed due to the Home
 Refugee Family Reunification in the UK: Challenges and Prospects | 54

The expressions “hostile environment” and a “major cultural change” around a theme
“culture of disbelief” came up regularly during labelled “a more compassionate approach” and
interviews with practitioners and service providers proclaimed its ambition to “create a fundamental
and are instantly recognisable to anyone working shift in the culture of the department”.286 As
in the asylum sector.280 part of this cultural change, the Home Office
acknowledged the need “to understand the
The existence of a “culture of disbelief” within diverse parts of our community, including the
the UK asylum system is well documented.281 A most vulnerable in society, to ensure that we take
2019 study by Freedom from Torture, analysing proper account of the complexity of people’s
fifty reports by refugee organisations about the lives and make sure that we make the right
decision-making process in the asylum system decisions”.287
over the last fifteen years, identified
Refugees who have been forcibly separated from
[…] a convergence of views on the their families are undoubtedly amongst the most
fundamental causes of poor decision- vulnerable in society, and there is little doubt
making, including the unrealistic and about the complexity of their lives and those
unlawful evidential burden placed on of their family members overseas. Whilst it is
applicants and a starting point of disbelief, true that, as remarked by the Home Office, “[f]
with a devastating impact on the individuals undamental cultural change takes time and there
is no quick fix”,288 radical systemic measure aimed
involved.282
at eradicating the “culture of disbelief” within
the UK asylum and immigration system are long
The “culture of disbelief” is however not limited
overdue and should be implemented as a matter
to the asylum system, but permeates all areas
of priority.
of immigration decision-making. In her review of
the Windrush scandal, published in March 2020, The Home Office itself is more than capable of
Wendy Williams identified the “culture of disbelief running successful immigration projects, as the
and carelessness” as one of the “organisational implementation of the EU Settlement Scheme
factors” in the Home Office which created the (EUSS) shows.289 Launched in 2019, after a
operating environment in which the mistakes pilot project, in order to ensure that some 3.5
which led to the Windrush scandal could be million EU citizens could enjoy the continuation
made.283 of their rights following Britain’s departure from
the EU, the EUSS is, relatively speaking, a
It is difficult to imagine that this pervasive culture
model of simplicity and good practice, at least
of disbelief does not also have an impact upon,
for those with straightforward applications. A
and affected the atmosphere in which, decision-
combination of a simple on-line application
making around RFR applications takes place.
form, minimal requirements as to evidence, a
The main recommendation from the Freedom limited need to send documents to the Home
from Torture report is a radical overhaul of the Office, a dedicated call centre with responsive
entire Home Office asylum system, including staff to deal with queries, and perhaps most
a change of culture to one that takes pride in importantly a dedicated, resourced, network of
the importance of the work of refugee status immigration advisers providing help for vulnerable
determination.284 Similar recommendations clients, makes the system easy to use and
appear prominently in Wendy Williams’ review of approachable.290 Prior to serious delays caused
the Windrush scandal, which required the Home by the pandemic, most decisions are made within
Secretary to “set a clear purpose, mission and days and the refusal rate is minimal. The majority
values statement [for the Home Office] which has of staff on the project are new and, as also noted
at its heart fairness, humanity, openness, diversity by the ICIBI, they “have understood the clear
and inclusion” and called upon the Home Office message that they should be ‘looking to grant,
to devise a programme of “major cultural change” not for reasons to refuse’”.291
for the whole department and staff at all levels.285
The scheme has been criticised for not providing
In its response to the Windrush Lessons a physical visa, residence card or vignette to
Learned Review, published in September 2020, applicants, who can only prove their status
the Home Office grouped Wendy Williams’ online. It has also been severely affected by the
recommendations relating to the need for fact that embassies and the Home Office have
been operating remotely, or not at all, for periods
 Refugee Family Reunification in the UK: Challenges and Prospects | 55

of time since the start of the COVID-19

pandemic. In this regard, the fact that
the Home Office has decided not to
extend the deadline for applications to
take account of the disruptions caused
by the pandemic has been met with
dismay by organisations that serve
vulnerable clients. However, the fact that
financial resources have been allocated
to these organisations at all, as well as
many other positive features of the EUSS
scheme, illustrates what a properly funded
Home Office initiative can achieve when
supported with adequate resources and
political will.
Another successful Home Office project
which should be mentioned in the
context of refugee family reunification
is the Vulnerable Persons Resettlement
Scheme (originally the Syrian Vulnerable
Persons Resettlement Scheme)
introduced in 2015 as a reaction to the
European refugee crisis.292 The scheme
provided a “gold-plated” service, working
with Local Authorities to find suitable
accommodation, school and medical
provision for vulnerable families. With
generous resources provided by the
Home Office, local authorities could then
sub-contract ESOL, integration, and
settlement services or provide them in-
house as required.293 Although not without
its critics (most notably in respect of
integration and monitoring),294 the scheme
is another example of what can be done
by the Home Office. From its inception
to May 2020, 20,007 people have been
resettled under the scheme.295
Where the political will exists, it is possible
for the Home Office to find the resources
and set up systems to support genuinely
compassionate and humane processes
which support vulnerable people in
accessing their rights, rather than actively
seeking reasons for them not to do so.
There is no good reason why the same
cannot be done for a matter as important
for the well-being and integration of
refugees as the family reunification process.
 Refugee Family Reunification in the UK: Challenges and Prospects | 56

4.4 Main findings

and recommendations
Main findings
There have been some considerable
improvements in the RFR application process
and Home Office decision-making process since
2018:
- The new UKVI online application system
represents a marked improvement upon the
previous. The system is easier to navigate,
contains a RFR application form and allows
users to upload electronic copies of documents
and evidence.
- The move of decision-making to a UK-based
team of caseworkers trained in asylum and
RFR matters is an important step towards
recognising that RFR is a protection issue
rather than an immigration matter and has the
potential to result in better decisions.
Nevertheless, some issues remain:
- Despite the recent improvements in the online
application system, the process of applying
for RFR is still far from being straightforward
and the application system remains difficult to
navigate without qualified legal support.
- The approach of decision-makers to matters
of evidence, including the possible reasons
underlying a lack of documentary evidence,
often does not take into account the
specificities of the refugee condition.
- With regard to complex, non-standard
applications, the possibility of granting LOTR
appears to be under-utilised by decision-
makers, who do not regularly consider
proprio motu the existence of exceptional
circumstances or compassionate factors.
- Despite some indications that the overall quality
of decisions has improved as a result of the
onshoring of RFR applications to a specialised
team within the Asylum Directorate, the poor
quality of decisions continues to be a source of
concern for many in the refugee sector, with the
“culture of disbelief” being identified as the root
cause of non-compassionate, inconsistent and
poorly motivated decisions.
 Refugee Family Reunification in the UK: Challenges and Prospects | 57

Recommendations

For the Home Office

- Monitor the functioning of the new online - Ensure that all information relevant
application system and address any to RFR is accurately captured during
remaining technical issues, including the sponsor’s asylum process and
those relating to the functionality of the mandate asylum caseworkers to
document upload system. provide information about the family
reunification process to all asylum
- Monitor the functioning of VACs operated seekers during their asylum interviews.
by commercial partners, including the
availability of free appointments for RFR - In consultation with relevant
applicants. stakeholders, explore the possibility of
further strengthening the link between
- Take steps to ensure that the approach the sponsor’s asylum process and the
of decision-makers to evidence and subsequent family reunification process
evidentiary requirements is in line with by introducing the “ghosting” of RFR
the Home Office’s own guidance and applications during the refugee status
takes into account the difficulties which determination process.
refugees may encounter in producing
documentary evidence. - Improve internal monitoring and
reporting systems in order to ensure
- Mandate decision-makers to make quality control and transparency
increased use of the possibility to of decision-making in respect of
interview sponsors and applicants RFR applications, particularly those
whenever they consider that the evidence concerning complex, non-standard
submitted with the application is not fully cases and grants of LOTR.
satisfactory.
- Engage fully with the recommendations
- Commission and pay for DNA testing of the Windrush Review and design and
when, upon initial assessment, the implement a meaningful and radical
documentary evidence supporting programme of “major cultural change”
a RFR application appears to be aimed at eradicating the “culture of
insufficient to substantiate the disbelief” in all areas of the asylum and
existence of the relevant family immigration system.
relationship.
 Refugee Family Reunification in the UK: Challenges and Prospects | 58

5 Legal assistance for

Refugee Family Reunion
5.1 The regulatory framework
This chapter explores the availability
for immigration advice and
of legal support for refugee family
reunification. It provides an overview of services
the challenges influencing the delivery
of support, and particularly legal The provision of legal advice and services in the
assistance, on the frontline. area of asylum and immigration is regulated by the
Immigration and Asylum Act 1999 (IAA 1999).296
By way of background, section 5.1 outlines The IAA 1999 makes it a criminal offence to give
the regulation of the provision of legal unregulated legal advice or to provide unregulated
advice and services on immigration and services in respect of immigration matters; it
asylum Section 5.2 takes as its starting establishes the Office for the Immigration Services
point the withdrawal of legal aid for RFR Commissioner (OISC) as the body with general
following the entry into force of LASPO and responsibility for the regulation of immigration
the introduction and development of the advice and services.297
use of exceptional case funding (ECF) as
the only form of legal aid still available and Immigration advice is defined in the IAA 1999 as
the outcome of the 2019 LASPO Review. “advice relating to a particular individual given in
Section 5.3 concludes that, in light of the connection with one or more relevant matters by a
specificities of refugee family reunification as person who knows that he is giving such
a protection, rather than immigration, matter, advice”.298
RFR applications should be subject to the
Any immigration adviser who is not regulated as a
same legal aid considerations which apply to
lawyer must be regulated by OISC. The IAA 1999
asylum cases.
specifies that services are subject to regulation
when provided in the course of business, whether
pro bono or for profit, and the relevant OISC
Guidance specifies that “this includes occasional
help offered to members of a community”. As a
consequence, organisations which undertake any
immigration advice activities “as an ancillary
service to their main business” are still subject to
regulation by OISC.299
 Refugee Family Reunification in the UK: Challenges and Prospects | 59

Section 84(1) of the IAA 1999 provides that The OISC accreditation scheme for immigration
“no person may provide immigration advice or advisers is currently articulated over three levels,
immigration services unless he is a qualified depending on the category of advice provided and
person”. Under section 84(2), the following main the complexity of the work to be undertaken.
categories of persons are entitled to provide
immigration advice and services: Basic immigration advice
Level 1
- advisers registered with OISC within the Immigration Rules

-p
 ersons authorised by a designated professional More complex casework,
body to practice as a member of the profession including:
regulated by that namely:
Level 2 - applications outside the Rules
• Solicitors, regulated by the Solicitors Regulation
- all asylum matters
Authority (SRA)
- RFR applications
• Barristers, regulated by the Bar Standards
Board (BSB) Level 3 Appeals and representation
• Chartered Legal Executives, regulated
by CILEX
There are two pathways to OISC registration,
-a
 person permitted through exemption from namely “Asylum and Protection” and
prohibition to provide immigration services e.g., “Immigration”. RFR is classified as an OISC
Citizens Advice Bureaux), or Level 2 matter within the Asylum and Protection
- s omeone working (paid or otherwise) under the category. The syllabus for qualification covers
supervision of any of the above. assisting individuals with asylum claims,
fresh claims, family reunion applications and
However, individual solicitors who are regulated
applications for indefinite leave to remain on
by the SRA may or may not be required also to
protection grounds. Advisers do not need to
be regulated by OISC depending on the structure
have passed an assessment or be registered
of the institution within which they are providing
with OISC at Level 1 in the Immigration category
advice. For example, solicitors who work in
before applying for registration at Level 2 in
organisations which do not meet the SRA Practice
the Asylum and Protection category. However,
Framework Rules (which is the case for many
it is recommended that applicants have an
charities), would need to seek registration with
understanding of immigration advice at Level
OISC as the SRA prohibits delivering legal advice
1 so that they are able to identify cases which
to the public unless working in an SRA-regulated
might fall within different routes and to signpost
body (subject to certain exemptions).300
clients accordingly. As there is no examination at
In addition, solicitors who undertake asylum Level 1 in the Asylum and Protection category,
and immigration work under a legal aid contract an organisation, and an individual can in practice
are required to be a member of the Immigration register directly at Level 2.
and Asylum Accreditation Scheme run by the
A distinction is also drawn between registration of
Law Society “which aims to ensure a minimum
an individual and registration of an organisation.
standard of competency for practitioners advising
An organisation cannot be registered without
on immigration and asylum law”.301
linking that registration to a registered individual;
With the exception of Law Centres, the majority of conversely, a registered individual cannot maintain
charities giving immigration advice are registered his registration for longer than six months, unless
with and regulated by the OISC. working for a registered organisation.302 In addition,
an organisation cannot be registered at a level
higher than the registration of the most highly
registered adviser who works for it (whether or not
that it is in a paid capacity).
 Refugee Family Reunification in the UK: Challenges and Prospects | 60

5.2 Publicly-funded legal England and Wales. Coming on the back of a

series of reviews and assessments, and designed
assistance for refugee both to reduce pressure on the public purse, and
family reunification produce efficiencies within the legal profession,
LASPO was driven by four objectives:
- To discourage unnecessary and adversarial
Glossary
litigation at public expense;
Legal aid: Legal aid is the umbrella term - To target legal aid to those who need it most;
for legal assistance granted by the State to - To make significant savings to the cost of the
individuals who cannot afford to pay for their scheme; and
own legal assistance. This may take the form
of legal help and/or legal representation. - To deliver better overall value for money for the
taxpayer.310
Legal help: Legal help is the term the Legal
Aid Agency use to refer to legal advice Immigration cases, with the exception of those
and assistance, but not representation, in where the individual is detained, were one of
respect of a legal problem. the categories of cases for which legal aid
became unavailable following the entry into
Legal representation: the term legal force of LASPO in April 2013.311 Whilst asylum
representation refers to the work undertaken applications and other protection claims remained
by legal practitioners to represent their within the scope of legal aid,312 RFR applications
clients in court. were regarded as an immigration rather than an
asylum / protection matter and therefore excluded
Legal assistance: the term legal
and funding discontinued.
assistance is used in the present report to
refer to the full spectrum of advice, legal help In the 2010 consultation document which
and representation. preceded the adoption of LASPO, the Government
put forward three main justifications for removing
most immigration cases from the scope of legal
5.2.1 Legal aid for Refugee Family
aid. The first justification was that, although some
Reunion after LASPO immigration cases could raise important issues
The family reunification process is costly, and concerning family or private life, even in those
legal costs are a particularly relevant component. cases, “individuals are not at immediate risk
Private solicitors generally charge between £300 as a result of decisions, in contrast to asylum
and £1200 per application. applications”.313 Following on from this, the
Government argued that individuals involved in
Until April 2013, refugees and other beneficiaries immigration cases “will usually have made a free
of international protection were entitled to and personal choice to come to or remain in the
publicly-funded legal assistance in relation to RFR United Kingdom, for example, where they wish
applications. This helped to fund crucial steps in to visit a family member [...] or to fulfil their desire
the family reunification process by providing for a to work or study here” and that “the individuals
legally qualified practitioner to help with assessing concerned are not likely to be particularly
the case, taking instructions, completing the vulnerable (in contrast to asylum seekers)”.314
applications and taking witness statements where The final justification put forward was that
needed. Other costs connected to the application immigration cases are straightforward and that,
were also covered, including translation costs, “as tribunals are designed to be user-friendly, and
DNA testing, qualified interpreters, as well as interpreters are provided free of charge, individuals
representation on appeal. should be capable of navigating their way through
The situation changed with the entry into force the system and representing themselves”.315 As
of the Legal Aid, Sentencing and Punishment of discussed below, even if it were to be accepted
Offenders Act 2012 (LASPO), which introduced that the premises underlying those justifications
substantial changes to the legal aid system in were true in respect of most immigration matters,
none is applicable to refugee family reunification.
 Refugee Family Reunification in the UK: Challenges and Prospects | 61

The cost of family reunification

I have spent over £5000, and my wife to which sponsors will go to in order to find the
and I have nowhere to live. I have money to cover the costs associated with the
borrowed all this money from my friends. family reunification process.
We should be very happy because finally
she is here with me, but our child is in Many interviewees had resorted to
Sudan, and we don’t know when we will extreme measures to save money. This
see him again. We are living on the floor included going without food, not having
staying with friends. We have no home their own place to live, managing with
because the council says we are not insufficient clothing and walking
vulnerable because we don’t have a child. everywhere instead of taking public
We do have a child, but he is not allowed transport (sometimes taking several hours
to be with us.” to reach a destination). These cost-
(Sponsor, 19 July 2019) cutting measures had profound, negative
health effects. Participants reported
I don’t think anyone understands the weight loss, illness, anxiety and
huge costs associated with family depression.”304
reunion. […] the cost of family Pre-arrival costs start with paying an adviser
reunification, including the solicitors’ for help with the visa application. This can cost
costs, are between £2500 and £6000 anything from £300 to over £1200, depending
per family. There is also the huge cost on the size of the family and the quality of the
for people when their families arrive. immigration adviser. This is not the only cost
There is no wonder that the stress this associated with the application however, as in
puts on families causes all sorts of some circumstances a sponsor may have to pay
for an interpreter, certified translations, expert
problems, including family breakdown.”
witnesses, or a social worker or doctor’s report.
(Financial Inclusion caseworker, Refugee
support charity, 24 June 2019) In addition, there may be a need for DNA tests,
costing around £400, and TB tests for each
The real financial cost of family travelling family member, costing upwards of
reunification for refugees is poorly £50 per individual, and only remaining valid for
understood and under-researched.303 six months. Again, TB tests are only valid if they
Several organisations interviewed were are done at a UK government-recognised clinic,
particularly interested in looking more which may be hundreds of miles away from
closely at the costs associated with the the place where the family members live, with
process. It is beyond the scope of this associated travel costs.
report to conduct a full analysis of the
In order for the application to be completed, all
costs incurred by refugees during the
of the applicants must attend an appointment at
family reunification process; however, it is
the nearest VAC in order to have their biometric
important to highlight that those costs go
data taken. In many countries there is only one
well beyond the costs of paying for legal
VAC, normally located in the capital city; in
advice for the application, putting extreme
some countries there is none, and families will
mental strain on refugees seeking to be
have to travel to a neighbouring country. This
reunited with their families.
results in costs for travel, accommodation and
A recently published report on the impact of subsistence, not to mention the associated
LASPO on refugees seeking to be reunited dangers of travelling. A recent British Red Cross
with their families in the UK details the lengths report details the often overlooked costs incurred
 Refugee Family Reunification in the UK: Challenges and Prospects | 62

by applicants who have to travel to VACs, often Family Reunion provisions”.308 However, the loan
in other countries, paying for transportation, and can still provide some much needed financial
sometimes to be smuggled, subsistence and support for refugees preparing for the arrival of
accommodation. Such costs may sometimes their families, as it can be used to put a deposit
be incurred more than once, and can amount to on private rented housing, or to pay for essential
thousands of pounds.305 furnishings.
Whilst some of the costs associated with the Some financial assistance is also available
application can be covered by disbursements from the charity sector. RefuAid, a charity
from ECF, including DNA testing, interpreting which supports refugees with interest-
and translation, there is no government funding free loans for, inter alia, education and re-
available to pay for the costs incurred by family accreditation, can lend approximately £1200
members abroad. for a family reunification case. Other charities
make applications on behalf of sponsors/
The financial costs involved in the family families to national foundations such as the
reunion process increase dramatically when an Zakat Foundation to cover some of the costs
application is rejected. If an appeal is required, connected with the family reunification process.
this will result in the incurring of additional costs, The British Red Cross Travel Assistance
including court fees and the costs of legal programme seeks to support families who
representation. cannot afford the cost of flights.309 Since
Assuming that all family members successfully October 2019, due to funding limitations, the
get their visas, the next cost is that of travel programme has only been able to accept
to the UK. Visas issued to successful RFR applications for reunion with unaccompanied
applicants expire after only 30 days,306 and this children and families larger than three people,
will often place an additional financial strain meaning that many families now face additional
on the family, who are rarely able to buy the costs.
cheaper flights which would be available with Even if sponsors are able to access the full
more notice. UNHCR has highlighted there is range of assistance which is available, it is still
a need for travel assistance schemes to be unlikely that they will manage to cover all of the
implemented by UK authorities in order to cover costs. For most, covering those costs means
the actual financial needs of refugees and their borrowing from community members, often
families travelling to the UK.307 leaving individuals in long-term and crippling
Following arrival, the costs continue to mount debt, and open to exploitation. The burden of
up. Often sponsors have only just received debt, added to a host of other psycho-social
their own status and are living in shared issues, has the potential to wreck the family’s
accommodation or hostels, and are thus unable chances of successful integration, hinting at
to receive their families. Universal credit stops at the real cost of the failure of the refugee family
the time when the family arrives and has to be reunion system.
reapplied for, often leaving the family for several
weeks with no income. Where there are children
in the family, housing will be found by the Local
Authority, but a couple without children will
receive no such help.
The only help available financially for a newly
recognised refugee is a government integration
loan of up to £1000. With very strict eligibility
criteria (the applicant must not have more than
£1000 in savings or be earning more than
£15,000 – significantly less than the national
living wage) the loan specifically excludes
“air fares for dependants to join an applicant,
including those granted entry clearance under
 Refugee Family Reunification in the UK: Challenges and Prospects | 63

The impact of the withdrawal of legal aid for RFR the legal aid immigration advice sector published
applications is well-documented. Since the first in 2019, the reasons for this drop include:
comprehensive report on the impact of legal aid
- the fact that certain areas of legal work feed
cuts published by the British Red Cross in 2015,
off each other, e.g., housing, immigration and
many organisations have also written about the
welfare benefits, leading to the sharing of
detrimental impact of the withdrawal of legal aid
resources;
on this specific area of work and access to justice
more generally.316 - consistent under-funding of work, leading to
solicitors not being able to put in the amount of
LASPO has led directly to a drop in the number work they feel is appropriate into their cases;
of firms prepared to take on cases in the field of
immigration. Since 2015 there has been a 56% - an imbalance between the supply of matter
drop in the number of providers offering legal aid starts and the demand of the asylum-seeking
representation for Immigration and Asylum law. populations who need to access them.318
The number of not fee-charging providers saw an The study mapped the availability of legal aid
even more significant reduction, with only 36% immigration advice and identified several “desert”
remaining in 2018 when compared with 2005 areas where no legal aid immigration advice is
levels.317 available, and others where only one legal aid
provider is available.319
According to a study on the impact of LASPO on

Distribution of legal aid

immigration providers across Northumbria

England and Wales

13 Tyne
& Wear
Figure from J. Wilding, Droughts and Deserts.
A Report on the Immigration Legal Aid Market,
2019. Reproduced with the author’s permission.
Durham Cleveland ENGLAND
Cumbria

North Yorkshire

Key 4
Lancashire 21 Humberside
West
No Legal Aid Immigration Yorkshire
Greater
& Asylum Lawyers Merseyside
Manchester West 9
One Legal Aid Immigration 6 27 Yorkshire

& Asylum Lawyer Derbyshire

More than one Legal Aid Clwyd
Cheshire
6 Lincolnshire

Immigration & Asylum 36 Nottingham

-shire
Lawyers Gwynedd
Staffordshire
Leicestershire Norfolk
Shropshire

WALES West 5 5
Midlands
Northhamp Cambridgeshire
Powys -tonshire
Warwick
Suffolk
Hereford -shire
& Worcester Bedford
Dyfed -shire
8
Gloucestershire
4 4 Hertford Essex
-shire
2 12 Oxfordshire

West Glamorgan 9 Greater

London
130
Bristol Berkshire

3
South Glamorgan Wiltshire
3 Surrey Kent

Somerset Hampshire

W.Sussex E.Sussex

Devon Dorset

Isle of Wight

Cornwall
 Refugee Family Reunification in the UK: Challenges and Prospects | 64

The fact the RFR is no longer within the scope of legal aid does not mean that the decline in numbers of legal
aid solicitors is of limited relevance for refugees seeking to bring their family to the UK. As noted above, the
scarcity (or total absence) of legal aid immigration solicitors in some areas makes it particularly challenging to
find someone who is willing to take on RFR cases even if they come with ECF.

5.2.2 The LASPO Review

In early 2019, the Government published the outcomes of the long-awaited post-implementation review of
LASPO.320 Despite submissions from multiple stakeholders providing evidence of the suffering and hardship
caused by the cuts,321 to the distress of bodies representing the immigration sector, the review did not suggest
any changes in respect of legal aid for RFR applications.322

LASPO Review: Summary of findings on

immigration advice
Government goals for LASPO Government response in the review

Whilst the scope changes were focused on reducing the remit of legal aid, the
decisions as to what was a sufficient priority to remain in scope were based
on factors such as the ability of the individual to self-represent, the likelihood
To discourage unnecessary
of breach of international obligations in the area of law, and the availability of
and adversarial litigation at
alternative sources of advice and funding. Therefore, the impact of the scope
public expense
changes on the volumes of legal aid has been largely considered on the next
objective – whether LASPO has been successful at targeting legal aid at
those who need it most.

Another aim was to better target legal aid at those who need it most which, in
To target legal aid to those this case, was deemed to be asylum seeking applicants. As such, this policy
who need it most has been broadly effective, although volumes of asylum cases have
dropped slightly.

Data limitations prevent us from properly assessing the efficiency and equity
effects of these scope changes, nor can we robustly address whether the
To make significant savings savings represent savings to the government as a whole or the LAA alone.
to the cost of the scheme Consequentially, it is not possible to make a firm conclusion regarding the
extent to which these policies represent better overall value for money for the
taxpayer.

To assess overall value for money it is necessary to consider the extent to

To deliver better overall value which costs have been shifted away from the legal aid fund and towards other
for money for the taxpayer. parts of government. Due to data limitations, it is not possible to assess the
extent to which this cost shifting has taken place.

Notwithstanding the equivocations in the overall conclusions set out above, the statistics relating to the
changes in the volume of cases and in overall spending by the LAA in the sector of immigration legal
aid presented in the LASPO Review indicate that the cuts introduced by LASPO have achieved the
aim of drastically reducing public spending in this sector, in line with what had been the Government’s
expectations at the time LASPO was introduced.
 Refugee Family Reunification in the UK: Challenges and Prospects | 65

Table 4: Decrease in spending on immigration legal aid since LASPO (2012-13 to 2017-18)323

Level of
Volume change Spend Change
service
Level of Impact Actual change Impact Actual Actual
Actual %
Service Assessment % (Number of cases) Assessment % % change
Legal Help
0% -9% -3,500 0% 0% 0m
(Asylum)
Legal Help
-92% -85% -20,100 -89% -80% -9m
(non-Asylum)
Civil
N/A -62% -19,000 N/A -64% -7m
Representation

Table 5: Estimated Spend: 2012-13 baseline year and 2017-18 estimates 324

Level of service Baseline 2012–13 Current 2017–18 % Change

Legal Help (Asylum) £30m £30m 0%

Legal Help (non-Asylum) £10m £2m -80%
Civil Representation £10m £4m -64%

There is, however, some evidence that cutting legal as most cases involving families involve multiple
aid at the point of initial access simply moves the applications in respect of a single sponsor, it is
costs along the process. Individuals who might likely that the total cost of funding RFR applications
make their own applications could easily overlook at ECF levels would have been very substantially
more complex matters at the beginning of the lower.
process, leading to appeals and further use of
court time and the need for ECF.
Further, the costs to individuals and families who
experience delays of months and even years of
failing to be reunited with family members are
incalculable, and the delays and their detrimental
consequences on the mental and sometimes
physical health of refugees is likely to impact
heavily on public health and social services.325
There is a huge weight of evidence as to damage
to the prospects for integration of individuals
granted asylum in the UK but who are without
their family members, and the fact that delays in
their arrival make the integration process more
difficult.326
In this context, it is also worth noting that, even
if one assumes that each of the 7,083 RFR visas
issued to family members in the 2019 calendar
year involved a separate sponsor, if each sponsor
had been granted ECF at the standard rate,
and the full amount of disbursements for the
application, the maximum cost would have been
less than £4.5 million. Given that ECF is granted
per sponsor, rather than per application, and
 Refugee Family Reunification in the UK: Challenges and Prospects | 66

5.2.3 Exceptional Case Funding of LASPO, because of both the unexpectedly low
number of individuals who attempted to make use
In an attempt to ensure that the drastic cuts
of the scheme and the tiny proportion of cases in
to legal aid did not put the UK in breach of its
which ECF was granted.335 Notoriously, during the
international obligations, LASPO introduced the
first year of operation of the scheme, out of 234
Exceptional Case Funding (ECF) scheme as a
applications for ECF relating to immigration cases,
safety net for those cases where an individual’s
only 4 (1.7%) were successful.336
rights under the ECHR or EU law would be
breached should they not be able to access In 2014, in Gudanaviciene v. Director of Legal Aid
justice due to the lack of publicly-funded legal Casework, the Court of Appeal found that the Lord
assistance.327 Chancellor’s guidance on ECF was not compatible
Section 10 of LASPO provides for funding to be with the right of access to justice forming part
made available for those cases that are outside the of the right to a fair trial under Article 6 ECHR
scope of legal aid, but in which a failure to provide and Article 47 of the EU Charter. With regard to
publicly-funded legal support would breach, or immigration cases, the court also found that the
would risk breaching, “the individual’s Convention Lord Chancellor’s guidance was also incompatible
rights (within the meaning of the Human Rights with Article 8 of the ECHR, as legal aid should in
Act 1998), or any rights of the individual to the principle be available when applicants for entry to
provision of legal services that are enforceable EU the UK seek to argue that a refusal of entry would
rights”.328 For ECF to be granted, the case must interfere with their right to respect for private and
also satisfy the same merits and means-testing family life.337
criteria, as well as any other regulations made The changes to the Lord Chancellor’s ECF
under LASPO, which apply generally to in-scope guidance introduced as a result of the Court
cases.329 of Appeal’s decision, together with practical
Unlike applications for legal aid in immigration improvements in respect of the manner in
matters, ECF applications do not require OISC which the scheme operates, and considerable
regulation, so they can be completed also by investment by some organisations in capacity-
individuals who are not registered with OISC.330 building around the ECF application process,338
have led to a significant increase in both the
When an ECF determination is made, the funding numbers of ECF applications being made, and in
covers both legal fees and disbursements.331 With the grant rate in recent years.339
regard to fees, initial RFR applications (stage 1)
fall under the Immigration Graduated Fixed Fee Table 6: ECF for immigration cases:
scheme and are paid a fixed fee of £234 per applications and grant rates 340
sponsor, regardless of the number of applicants.332
The upper limit for disbursements is currently set Financial Year Applications Grants
at £400, although this can be extended with prior
approval.333 All work must be itemised, and if it 2013–14 234 4 (1.7%)
reaches three times the standardized amount, it
2014–15 334 57 (17.1%)
becomes payable at a standard hourly rate.
2015–16 493 326 (66.1%)
The fees allowable for making an appeal are £227
for the so-called stage 2a (up to the hearing but 2016–17 1,008 693 (68.8%)
excluding the hearing itself) and £454 for stage 2017–18 1,556 1,086 (69.8%)
2b, which includes preparation for the hearing. A
further fee of £237 is paid for attendance at the 2018–19 1,950 1,537 (78.8%)
hearing if it takes place (£161 is payable if the 2019–20 2,525 2,033 (80.5%)
hearing is adjourned). Usually the sum available
in respect of a hearing is used to instruct a
barrister to attend the hearing. The amount for The Government has indicated that the increase
disbursements in respect of appeals starts at in the overall number of ECF applications over the
£600, and the rules around the escape fee are the last few years is largely driven by an increase in
same as at stage 1.334 applications in relation to immigration matters.341
The ECF scheme came in for heavy criticism in
the years immediately following the entry into force
 Refugee Family Reunification in the UK: Challenges and Prospects | 67

Despite the marked increase in the percentage of Whilst some charities felt that it was a poor use
successful ECF applications since 2015, the ECF of their scarce resources to be applying for ECF,
scheme remains extremely controversial. Some of other organisations stated that they automatically,
the most common grievances put forward by the at the first meeting with the sponsor, apply for ECF
practitioners and service providers interviewed are – this is particularly helpful where a charity already
that: has a legal aid contract and can do the work in
house, because this ensures that they will generate
- the level of funding available, particularly for some income from the cases they undertake.
the initial RFR application, is inadequate and Some organisations commented that they felt they
insufficient to pay for the work needed to had found the perfect formula for making ECF
complete the application; applications, and two who regularly submitted ECF
- the time required to make the ECF application applications said that they had success rates.
itself is such that any solicitor wishing to make a
Regardless of their views as to the complexity
profit may as well do the case pro bono, at least
of the ECF application, the consensus among
as regards the initial RFR application;
the service providers interviewed is that finding a
- even when ECF has been obtained, it can be very solicitor to take on the case once ECF has been
difficult to find a solicitor to take on the case, due secured is not easy. Whilst this is particularly the
to the decrease in immigration solicitors across all case for initial RFR applications, in some areas,
areas of the country (and the fact that funding is, service providers struggle to find solicitors who
again, inadequate). would take on appeals even if they come with ECF.
With regard to the complexity of and the time The latter cases are particularly problematic, as
required to apply for ECF, views amongst the appeals are time-sensitive and being able to find
practitioners and service providers interviewed a solicitor to take on the case in a timely fashion
varied. may have an irreparable impact on the family
reunification process.
Whilst solicitors will generally apply for ECF if a RFR
case has to go to appeal, many stated that it was The first obvious reason for this situation is that
not worth their time to apply for ECF for the initial the current levels of ECF are deeply unattractive.
RFR application because of the low level of funding As noted above, private solicitors generally charge
that is available. The fact that the LAA does not between £300 and £1200 per RFR application.
cover the costs of preparing ECF applications which Even at these rates, the solicitors interviewed
are refused was mentioned as a further disincentive. stated that the fees charged often do not cover
Several of the solicitors interviewed said that they the work they in fact do. The current ECF fee
would rather take on pro bono the RFR applications of £234 per sponsor, regardless of the number
of clients whose asylum cases they had handled, of applications, is evidently insufficient to cover
as much of the work necessary to prepare the RFR the work involved in even a relatively simple RFR
application had already been done as part of the application. In this context, an additional challenge
asylum case. This, however, was not possible in underlined by several of the interviewees is that
cases which were new to the solicitor. the maximum limit on disbursements does not
cover the costs involved in gathering supporting
evidence for the initial application, without the
We have such limited resources; we have additional work of applying for an extension.
to be really brutal about what we do and
what we don’t do. We used to appeal
merits refusals [relating to legal aid], but “We don’t apply for ECF because it
we don’t have time to do that either. We genuinely isn’t worth our time at the
just take on the appeals. We should do it initial stage, we might as well do the
because it’s so scandalous that we’re just case, but we always apply for it if we
plugging this massive gap, but we have to have to go to appeal”
prioritise our work.” (Solicitor, 19 January 2019)
(Caseworker, Refugee support charity,
2 July 2019)
 Refugee Family Reunification in the UK: Challenges and Prospects | 68

The difficulties associated with finding a solicitor

“People just don’t have the cash to willing to take on a family reunion case appear to
pay a lawyer so either they’d have indicate that the re-introduction of legal aid for RFR
to scrape up the money or wait for a would not be a simple quick-fix solution, and there
year. I felt like I couldn’t put people in is a need for much wider reform of the legal aid
that position. So, I just used to do it system. The infrastructure of legal aid solicitors is
pro bono”. simply no longer there, leaving clients vulnerable
(Caseworker, 19 September 2019) to exploitation from unscrupulous independent
immigration advisers.

“We have three solicitors in [our local 5.3 Recognising Refugee Family
area] and two of them won’t take the Reunion as a route to protection
appeals, even though they come
with ECF. They are always working to
Quite apart from the question of the real amount
capacity”.
of financial savings in fact obtained as a result
(Caseworker, 19 September 2019) of the withdrawal of legal aid for RFR, the main
justification for reintroducing publicly-funded
legal assistance for all RFR applications is one of
“Our problem is with the
principle. The logic of grouping RFR together with
disbursements. There is only £400
other immigration applications for the purpose of
available for a case when it is first
legal aid is inherently flawed and does not reflect
taken on, which wouldn’t cover an
reality. As the recent move of the processing of
expert witness or a medical report,
RFR applications to a specialist team within the
and possibly wouldn’t even cover
Asylum Directorate implicitly recognizes, RFR is
the necessary costs of translations.
a protection, rather than immigration, matter. The
Essentially, we will submit the first
fact that the LASPO Review did not engage with
case, get a refusal, then we’ll apply
this issue makes its assessment of the fairness
for ECF to challenge it. Solicitors will
and adequacy of the current legal aid system little
take it at this point, because they will
more than a box-ticking exercise as far as RFR is
get more funding, the case is already
concerned.
pretty much prepared and they can
get the information they need. There
In light of its inherent nature as an important
are literally no solicitors in Edinburgh
route to protection, RFR should never have
for example, who will take on a
been removed from the scope of legal aid. Even
Family Reunion case from the start”
accepting that the reasons which the Government
(Operations Manager, British Red Cross Refugee
presented in support of the decision to withdraw
Family Reunion Project, 27 July 2019)
legal aid for most immigration matters at the time
of LASPO are well-founded in respect of other
immigration cases, they clearly do not apply to
RFR applications.
The other limitation of the ECF scheme is that
As noted above, the first justification was that
cases which are successful in obtaining ECF can
decisions on immigration cases did not have the
only be taken on by an immigration solicitor with a
potential to put the lives of individuals at immediate
legal aid contract. Unfortunately, as discussed in
risk. Such consideration clearly does not hold
the next section, one of the many negative effects
true for decisions involving the right of a refugee
of LASPO has been the drop in the number of
to be reunited in the UK with members of his or
immigration solicitors with legal aid contracts,
her family who may themselves be in need of
and there are several areas in England and Wales
international protection in their own right.342 Indeed,
where either no legal aid solicitors are available
the risks faced by family members of refugees who
for immigration work, or the few legal aid solicitors
are left behind are well documented.343 Several of
present do not have sufficient capacity.
the sponsors interviewed for the present research
reported that their relatives were living in refugee
camps in areas that were unsafe, or that they had
been forced to leave children in unstable situations
and in the care of distant relatives or friends.
 Refugee Family Reunification in the UK: Challenges and Prospects | 69

The second justification for the cuts to legal

“Taking [RFR] out of legal aid funding
aid put forward by the Government was that
because it was a straightforward
individuals involved in immigration cases are
application was never going to work
unlikely to be vulnerable and will have made a
[…] if you’ve ever looked at one, you’ll
“free and personal” choice to come to, or remain
know that it’s not. ”
in, the UK. Again, such justification is also clearly
(Solicitor, 19 January 2019)
not applicable to the RFR context. The move
from being an asylum seeker to a refugee does
not automatically confer resilience, emotional “There are a lot of barriers: knowledge,
strength and financial stability (or indeed the language, computers. Even my
ability to speak English or to secure a job) on solicitor can’t do it successfully. I
the holder of refugee status. Many refugees
can’t do it myself. The whole thing is
find the journey towards integration that begins
complicated, all of it. I can’t do it
with the acquisition of refugee status at least as
myself.”
challenging as their journey through the asylum
(Sponsor, June 2019)
system. Additionally, many refugees start the RFR
application process as soon as they are able to
do so – often whilst they are still in temporary “Look, I am a smart guy, I taught
accommodation, and before they are in receipt of before in a university, but I knew I
benefits.344 wouldn’t be able to do it correctly.
I think maybe now, after going
The final justification identified in the LASPO through it and watching the
consultation was that immigration cases are solicitor, I might be able to do it but
straightforward and that individuals should be the evidence […] it’s crazy. It’s a
capable of navigating the system on their own and crazy system.”
representing themselves.345 The characterisation of (Sponsor, June 2019)
the RFR application process as a straightforward
one is contradicted by a number of authoritative
reports released since the entry into force
of LASPO.346 Criticism of the idea that RFR The idea that the RFR process is in any way
applications are straightforward has also come straightforward was also vehemently challenged
from the UNHCR, which has pointed to “a whole by all the practitioners and caseworkers
range of complexities” faced by refugees and their we interviewed and sponsors rejected any
families during the family reunification process and suggestion that the RFR process was easy to
noted that expert and experienced legal advice navigate. None of the sponsors interviewed had
is absolutely necessary in order to deal with such attempted the application by themselves. When
difficulties and prepare strong and successful asked why they did not think of undertaking
applications.347 an application on their own, all of the sponsors
interviewed reported that the application process
was complex and the application was too
important for them to try and risk getting it wrong.
Language barriers were frequently mentioned,
together with lack of understanding of what the
relevant forms required. Further, none of the
sponsors interviewed were aware of anyone in
their communities who had made the application
on their own and they reported that friends and
other members of their community who had
advised them about family reunification in the
first place had told them not to try to complete
the application on their own, because “it was
impossible without a solicitor”.
At present, sponsors are faced with a difficult
choice: preparing the applications on their own
 Refugee Family Reunification in the UK: Challenges and Prospects | 70

is not an option for most refugees and the pro in light of the economic crises over the last 15 years
bono provision for legal assistance is grossly and given the economic downturn resulting from
insufficient to meet demand, which leaves many the COVID-19 pandemic.
sponsors faced with having to pay a solicitor to
help them complete their applications, adding to an As an immediate, although decidedly makeshift
often overwhelming burden of debt. solution, it is essential that the level of funding
available through the ECF scheme is reviewed so
Publicly-funded legal assistance, provided by as to make it worthwhile for practitioners to apply
those with appropriate expertise and experience for ECF and to take on cases once ECF is obtained.
is therefore necessary for refugees to be able to This would, at least in the short term, address some
successfully navigate the RFR process.348 The of the issues created by LASPO and ensure that the
reintroduction of legal aid for RFR remains therefore ECF scheme fulfils its original state aim of ensuring
absolutely crucial. However, the outcome of the effective access to justice to some of the most
LASPO Review leaves little hope that the cuts to vulnerable people in society.
legal aid for immigration will be reversed in the
foreseeable future. This is even more unlikely now,
 Refugee Family Reunification in the UK: Challenges and Prospects | 71

5.4 Main findings

Recommendations
and recommendations
Main findings For the Home Office
- The cuts to legal aid introduced by LASPO have
- Given the complexity of the RFR
had an extremely detrimental impact on the
application process, what is at stake
entire immigration advice sector in England and
for applicants and sponsors and the
Wales, resulting in fewer legal aid solicitors and
nature of refugee family reunification
the closure of many pro bono advisers.
as an instrument of protection, legal
- Given the considerable costs involved in aid should be reinstated for all
obtaining private professional assistance, the RFR applications.
option of paying a solicitor to assist with RFR
applications is not available to a significant - Pending the reintroduction of legal
number of prospective sponsors. aid for RFR, the levels of fees and
disbursements available through ECF
- Obtaining ECF for RFR cases is now not
should be increased so as to make it
as difficult as was previously the case and
viable for practitioners to take on
the process of applying for ECF is not as
RFR cases.
complicated and time-consuming as commonly
perceived. However, the current levels of fees
and disbursements available under the ECF
scheme remain deeply unattractive to solicitors
and objectively inadequate to cover the full cost
of the RFR application process.
 Refugee Family Reunification in the UK: Challenges and Prospects | 72

6 The role of the charitable

and pro bono sector
Until 2010, there were two organisations with
This chapter examines the assistance national coverage, Refugee and Migrant Justice
available within the not-for-profit (RMJ) and the Immigration Advisory Service,
sector for refugees who seek to make which provided immigration advice free of charge.
an application for RFR. The chapter Both these organisations went into administration
seeks not only to identify major following changes to the way in which legal aid was
providers of legal services, but also paid, leaving tens of thousands of asylum seekers
to identify trends within the sector, and vulnerable immigrants without representation.349
instances of best practice, gaps in These two organisations were the backbone of
provision and potential solutions. legal aid provision to this group of people and would
have provided much of refugee family reunification
Section 6.1 starts with an overview of the work that was ongoing at the time. The collapse of
services currently available through refugee these two charities preceded LASPO by a couple
support charities and then examines other of years but was prescient of a crumbling legal aid
providers of pro bono legal assistance, system within the immigration sector.
including Law Centres and Citizens
Advice Bureaux, and law clinics run by These days, most organisations working with
universities. Section 6.2 then moves on refugees provide at least some form of support
to look at the main challenges facing the in respect of family reunification, given that family
sector; section 6.3 concludes by looking separation is an integral part of the refugee
at some of the advantages enjoyed by experience for so many. When it comes to providing
organisations working in the area of refugee legal assistance, however, there are only a handful
family reunification and at possible ways of of charities and projects which provide support with
increasing capacity. RFR applications.
With the exception of organisations which are
regulated by the Solicitors Regulation Authority
6.1 Mapping the availability (SRA), such as Law Centres and a handful
of free legal support of specialist legal charities, such as GMIAU,
organisations which give advice on RFR must be
6.1.1 Refugee support charities registered with OISC at Level 2 or above. As can be
seen from Table 7 below, there are few enough of
What is often called in shorthand “the refugee these organisations and the pattern of distribution
sector” in the UK is in fact composed of a wide mirrors to some extent that of legal aid providers,
variety of different types of charities and differently adding to the problem of advice deserts. It should
constituted organisations, including: be noted however, that many of the organisations
- national or international organisation of broad registered at Level 2 or above do not in fact
remit, with specific work streams related to provide support for RFR. There are many specialist
refugees (e.g. Children’s Society, British Red organisations which work only with individuals of
Cross); certain nationalities, or belonging to particularly
vulnerable groups – for example, those with no
- national refugee charities (e.g. Refugee Action, recourse to public funds. Many more organisation
Refugee Council); take on a wide variety of legal work, of which RFR
- specialist charities which work with refugees in normally forms only a tiny proportion. For example,
respect of a particular issue (e.g., Helen Bamber although there are three organisations in the East
Foundation; Freedom from Torture); Midlands registered at Level 2 or above, none
provide assistance with RFR.
- local and regional charities working partially or
exclusively with refugees and asylum seekers.
 Refugee Family Reunification in the UK: Challenges and Prospects | 73

Table 7: Organisations providing legal advice for RFR in England and Wales (January 2021)

Registered at Level 2 or Fewer than 5 RFR cases More than 5 RFR cases
above annually annually
Yorkshire and
19 1 4
the Humber
West Midlands 10 1 1
Wales 1 1 0
South West 6 1 2
South East 14 1 0
North West 7 1 2
North East 2 0 0
London 61 7 3
East of England 6 0 1
East Midlands 3 0 0
Total 129 13 13

The information set out in Table 7 above Alongside to its long-running Family Tracing
was compiled from the register of registered service and Travel Assistance programme (now
immigration advisers maintained by OISC as brought together under the Restoring Family Links
at 4 January 2021 and desk-based research. Programme), since 2015 the British Red Cross has
There were a number of organisations on the been running a legal project aimed at providing
register for whom it was not possible to obtain legal assistance with RFR visa applications.351
information (32 out of a total of 145), mainly The national British Red Cross Refugee Family
due to the COVID-19 lockdown. However the Reunion Project currently offers assistance to
websites of such organisations did not indicate refugees wishing to make RFR applications in five
that they gave immigration advice in this area, so main locations throughout the UK (London, North
it appears unlikely that it constitutes a significant West England, Plymouth, Leeds and Glasgow).352
area of work. It should be noted that there also The project currently employs five full time
exist refugee family reunion projects, such as members of staff and in each area is supported
the North of England Law Centre, which are not by volunteers. In Plymouth, the British Red Cross
regulated by OISC. Whilst the data presented in works in partnership with a legal clinic based
Table 7 is therefore not necessarily complete, it is within the University of Plymouth, supervised by a
still clear that the number of organisations offering solicitor who is the Law Clinic Director.353 In Leeds
significant family reunion projects is relatively and London, the project is run by and from the
small. It is also highly significant that most of the local British Red Cross office, with supervision
larger projects are funded by the Families Together provided by a local solicitor. Staff members are all
Programme, which is scheduled to end in 2021. OISC-registered advisers. In Scotland, the model
is slightly different and the caseworker from the
The main national organisations working solely British Red Cross does not make the applications,
with refugees and asylum seekers in England and but supports the refugee family reunification work
Wales, the Refugee Council, Refugee Action and of Just Right Scotland.354 In the North West,
the Welsh Refugee Council, whilst supporting the British Red Cross Family Reunion Project
advocacy and campaigning in the area of family currently has a caseworker based in – and jointly
reunification, do not offer legal assistance for RFR supervised by – Greater Manchester Immigration
applications.350 Aid Unit (GMIAU); the caseworker also runs a clinic
The British Red Cross is a major provider of in conjunction with Asylum Link in Liverpool.355
support for refugees and asylum seekers in the UK As discussed below, the British Red Cross runs
and offers a variety of different forms of assistance, a further project in partnership with the Central
including in relation to family reunification. England Law Centre.
 Refugee Family Reunification in the UK: Challenges and Prospects | 74

In 2019, the British Red Cross Family Reunion organisation, but being the only organisation
Project worked with 119 sponsors across the five providing pro bono immigration advice in that
core locations.356 The previous year the project country, it focuses principally on asylum appeals
had worked with 88 sponsors.357 Capacity at each and fresh claims for asylum seekers.362
of the locations varies greatly depending on staff
turnover and the availability of suitably qualified The Refugee and Migrant Centre (RMC), based
replacements. Due to its location and visibility, in Wolverhampton and with offices in Walsall and
the London office of the project receives a much Birmingham, is one of the major providers of RFR
higher level of referrals and direct enquiries than it legal assistance in the West Midlands.363 This local
is able to handle. In order to make the best use of charity works with between 150 and 200 sponsors
the resources available, the legal team in London annually on straightforward and more complex
tends to focus on particularly complex, “outside the cases. One of the largest local charities providing
Rules” cases which are likely to go to appeal, and services to migrants and refugees, the RMC has
applications raising Article 8 ECHR issues. For non- around twenty advisers registered at OISC Level 1,
complex cases, the project refers refugees to other ten at Level 2, and one Level 3 adviser, along with a
organisations or projects, including the RLAP run by regulated solicitor. These staff members are able
the University of Bedfordshire at its Luton campus. to undertake a wide variety of work, including RFR
However, even with this additional capacity, at times cases. Since RFR work is part of a larger work
there is insufficient within the project to even screen package, the ability to provide advice in this area is
cases and waiting lists are frequently closed.358 less affected by fluctuations in specific funding, and
cases of different levels of complexity, as well as
Some local refugee charities provide legal appeals, can be undertaken by advisers qualified at
assistance with RFR applications as part of a the appropriate level.364
broader range of legal services offered to refugees
and asylum seekers. One of the largest immigration Some smaller refugee charities also employ an
advice charities in the country, the Greater immigration adviser (either as a paid staff member
Manchester Immigration Aid Unit (GMIAU), plays or as a volunteer) who is able to undertake a range
a major role in providing free legal assistance to of legal work; however, their capacity to take on
refugees in the North West of England, including RFR cases would normally be very limited. It is
in relation to family reunification matters.359 Prior important to note however that charities which are
to the entry into force of LASPO, GMIAU already unable to provide legal assistance do still play an
provided legal assistance with RFR applications as important role in supporting refugees through the
part of the work covered by its contract with the family reunification process.
Legal Aid Agency. In 2012, as a response to the At the very least, refugee charities will provide
legal aid cuts and the anticipated impact of those psycho-social support to individuals going through
cuts on refugees seeking to bring their family to the family reunification process, directing them to
the UK, GMIAU started running a free legal service solicitors or pro bono legal advisers and helping
for RFR applications. Since then, the service has them prepare for their family’s arrival. Pre-arrival
worked with over 350 families.360 In the model used support may include helping with evidence
by GMIAU, a legal adviser will see the sponsor for gathering, preparing ECF applications, and
an initial interview to assess the complexity and finding small grants to help with paying solicitors.
viability of their case, before passing it on to the For instance, the British Red Cross Refugee
family reunion team, staffed by volunteers who support service, which currently operates from
collect and prepare the evidence. Once evidence over fifty locations in England and Wales, offers
gathering is completed, the client is moved back pre- and post-arrival support for refugees and
to the legal adviser for review/preparation of the asylum seekers, including in relation to family
application and submission. In the assessment reunification.365 The British Red Cross local branch
of the project manager, about 60% of the work in the South West has tried to standardise the
is done by volunteers, significantly increasing the support they give – gathering evidence, making
amount of work that can be undertaken with limited referrals to solicitors, providing help with DNA tests
resources.361 and identifying sources for financial help for the
Immigration advice charities are rare and GMIAU associated costs, as well as for legal costs. They
is the only one which undertakes a significant have also started preparing ECF applications, and
amount of refugee family reunification work. Asylum say that they are trying to provide all the wrap-
Justice, which is based in Wales, is another such around support they can, short of making the
applications themselves.366
 Refugee Family Reunification in the UK: Challenges and Prospects | 75

Many more refugee charities are involved in post- closure of half of all Law Centres and not-for-profit
arrival work, helping families find accommodation, legal advice services in England and Wales.371
welfare benefits, registering with a doctor, ESOL
classes. The organisations which provide this Of the 41 Law Centres listed on the Law Centres
kind of wrap-around support usually not only Network website as of June 2020,372 26 continue
help the sponsor during the application and pre- to provide some form of immigration advice, with
arrival phase of the family reunification process, most of these having legal aid contracts to work on
but also work with the family after arrival to help asylum cases and the limited amount of immigration
with access to accommodation and benefits, and work still within the scope of legal aid.373 Immigration
other integration support. In some organisations, is not one of the areas covered by the only Law
caseworkers monitor new arrivals for up to six Centre still operational in Wales.
months after their arrival, recognising that this Within those Law Centres which still provide
time of integration can be extremely stressful.367 immigration advice and services, capacity is
This is not an area of support that is provided by severely limited and demand ever-increasing, and
most legal services providers, nor by solicitors, few have capacity to deal with RFR applications.374
but is often necessary to ensure that reunification Many Law Centres only work on cases which
goes well and is sustainable in the long term.368 attract legal aid funding. Those which do provide
The UNHCR has also stressed the importance support for RFR cases tend to focus on complex
of monitoring the integration of reunited refugee cases which could not be supported by other pro
families in the UK, calling for the formulation of bono providers, such as local charities or the British
plans to foster integration by assisting families in Red Cross.375
dealing with the obstacles they may encounter in
the process.369 The two Law Centres which have specialist projects
for RFR are the Central England Law Centre and
6.1.2 Law Centres Network and Citizens North East Law Centre. The North East Law Centre
Advice Bureaux currently employs two members of staff (one OISC
Assistance with RFR cases is sometimes Level 2 adviser and one solicitor) on its Family
also available from not-for-profit Reunion project, which is partially funded by the
organisations providing general legal Family Together Programme. The project worked
advice, including Law Centres and Citizens with 94 sponsors during its first eight months of
Advice Bureaux. operation. Whilst the North East Law Centre did
undertake work on RFR even before setting up this
Law Centres are local, independent, not-for-profit new dedicated project, it had only had capacity to
organisations which provide legal assistance work with two sponsors a year.376
(advice, casework and representation) to individuals
who would not otherwise be able to afford it. The The lack of capacity for RFR applications is not
assistance provided by Law Centres covers a only an issue in areas where few refugee charities
variety of areas, usually including housing, welfare, operate. In London, caseworkers at the Islington
employment, and, in some cases, immigration. Law Centre, like most other Law Centre staff
Solicitors working in Law Centres are regulated interviewed, stated that the Law Centre manages
by the SRA as individuals and therefore do not to take on only a very small proportion of the clients
need to apply to OISC for registration. However, who contact them for help with RFR applications.377
the Law Centre itself needs to be regulated as an In mid-2018, the Law Centres Network
organisation by either OISC or the SRA.370 commissioned a review of their models to try
The services offered by different Law Centres are to prevent further closures and develop the
dictated – as they are in most voluntary sector organisations for the future.378 This includes
organisations – by what funding is available. finding more sustainable ways of funding their
Historically, Law Centres were funded by a core services; some Law Centres (for example
combination of local authority funding, legal aid, North East Law Centre) have set up chargeable
grants and trusts. Over the last decade, the immigration services, the idea being that
combined effect of the legal aid cuts introduced chargeable services will help support the provision
by LASPO and cuts to local authority funding of free services, including assistance for RFR
have severely weakened the pro bono legal advice applications.379
sector and, according to figures obtained through In a similar category to the Law Centres Network,
parliamentary questions, have resulted in the the Citizens Advice UK network is also founded
 Refugee Family Reunification in the UK: Challenges and Prospects | 76

16 were registered at Level 2 or above with OISC.380 Law clinics are a way for universities to expand
What makes the Citizens Advice UK network and increase their offerings to students in an ever-
particularly remarkable (and particularly promising more competitive higher education sector, whilst
as a partner in any national venture supporting RFR) at the same time providing services to the local
is that is has such a large number of members, and community. Over the last decades, law clinics have
that all are exempt from OISC registration at Level become increasingly popular in UK universities.
1.381 Traditionally, immigration law has not been a popular
choice with university law clinics, which tend to
6.1.3 University law clinics focus on other areas such as welfare benefits and
housing. However, since LASPO and in particular
A further avenue through which refugees are since the upsurge in interest in refugee issues
able to obtain qualified legal assistance in following the refugee crisis in 2015-16, several law
relation to their family reunion applications clinics in UK universities have expanded the scope
are university law clinics and clinical legal of their work to cover immigration matters, and
education projects. three universities have set up projects focusing
exclusively on RFR.

University legal clinics

Model
providing support for RFR
- Dedicated RFR clinic
Refugee Legal Assistance Project, - Run in partnership with an OISC-registered
University of Bedfordshire local charity
- Receives referrals from BRC FR Project (London)

- Dedicated RFR clinic

- Registered with OISC
Refugee Family Reunion Clinic, Sheffield
Hallam University - Only university to run a dedicated RFR module
- Has developed a complex partnership model across
Yorkshire, funded by AMIF

- Dedicated RFR clinic

Refugee Family Reunion Project, University of - Run in partnership with BRC
Plymouth - Jointly supervised by BRC caseworker and Law
Clinic Director

- Provides advice in a range of areas, including immigration

and asylum
Liverpool Law Clinic, University of Liverpool
- Runs a Family Reunion project
- Run as a module on the LLB

Queen Mary Legal Advice Centre, Queen Mary - One-off written advice on RFR (included amongst
University of London a range of other immigration applications)

- RFR advice included among a range of other

Immigration Advice Clinic, University of Exeter
immigration applications

- Advice on a variety of topics, including immigration

Law Clinic, University of Kent - Some RFR applications made as part of a range
of immigration advice
- Work in partnership with Paragon Law and BRC
Student Legal Advice Centre, - Makes applications for RFR for straightforward cases
University of Derby - Apply for ECF in more complex cases before referring to
solicitors
 Refugee Family Reunification in the UK: Challenges and Prospects | 77

When compared to other pro bono providers, regularise their status. In this regard, the experience
universities have the added benefit of access to of the Queen Mary Legal Advice Centre is illustrative
legally-minded, enthusiastic volunteers. The main of the positive attitude of OISC to the regulation of
drawback to the university clinic model is year- university clinics:
round capacity. Most of the clinics cannot operate
during the long summer vacation, and capacity There is no doubt that the regulatory
almost inevitably decreases during exam periods.
position of university law clinics has been a
This requires very careful planning in relation to
workload and when cases are taken on. One
confused picture for some time. It was
of the university clinics has taken on exchange summer 2017 when the [Queen Mary Legal
students from US universities as volunteers over Advice Centre] approached OISC to try and
the summer vacation to ensure that they could resolve the issue of compliance. Far from
continue their services on an ongoing basis, the reprimanding that the QMLAC
but this is not necessarily a viable option for all expected, OISC praised the clinic and took
institutions. a flexible approach to regulation to allow the
Centre to continue operating in this area.
For the majority of university law clinics which
This type of hybrid organisation (not a law
provide immigration advice, RFR, when it is
centre or a firm) was new to OISC, and
covered at all, is only one of a range of immigration
services offered, meaning that it is unlikely that quite early on in the discussions it became
more than a handful of cases will be completed apparent that a flexible approach was most
in a year.382 Projects working exclusively on RFR suitable.384
applications, however, are able to work with much
higher numbers of applicants and to develop The university law clinic model can be incredibly
specific skills and expertise, as well as contacts, successful whether stand-alone (like Sheffield
around their specialism. For example, the Refugee Hallam) or as a partnership with refugee charities
Legal Assistance Project at the University of (University of Plymouth/British Red Cross, and
Bedfordshire, which runs only one evening per University of Bedfordshire/BRASS). In addition to
week during term time, has assisted with over 150 providing much needed free legal assistance to
family reunion applications since its establishment refugees trying to bring their families to the UK,
in 2014; the Family Reunion Clinic at Sheffield university legal clinics serve the additional purpose
Hallam University, established in 2018, worked of exposing future legal practitioners to the realities
with over 200 applicants in the eighteen months of the immigration and asylum sector, increasing
before the COVID-19 pandemic forced it to move their awareness of the issues faced by refugees
online.383 and vulnerable migrants and educating the next
generation of decision and policy makers.385
The issue of regulation and registration with OISC However, in common with the rest of the sector,
can be problematic for university law clinics, funding is an issue and there are serious concerns
because of perceived reputational risks associated in the sector that legal clinics will be increasingly
with immigration advice. OISC is very aware of difficult to justify as a financially viable teaching tool
the situation and eager to help university clinics in the current climate.386
 Refugee Family Reunification in the UK: Challenges and Prospects | 78

6.2 Challenges for the pro bono sector

6.2.1 Capacity Table 8: RFR visas granted (2018-19 and 2019-
According to the most recent data published by 20)
the Home Office, 7,482 RFR visas were granted in
the year ending March 2020.387 During the same Year Ending Year Ending %
March 2019 March 2020 change
period, only 2,525 ECF applications were granted
Total
for all immigration matters (see Table 6 above). grants
5478 7482 +37%
Some sponsors would have submitted their
family’s applications by themselves or with the help Under 18 2579 3779 +47%
of friends, and some others had access to free
Over 18 2899 3703 +28%
legal advice from the pro bono sector. Still, when
the two figures are compared, it is clear that there
Source: Immigration statistics, year ending June 2020, available at https://
is a gaping disparity between the legal assistance www.gov.uk/government/statistical-data-sets/immigration-statistics-data-
needed and that currently available without cost tables-year-ending-march-2020#asylum-and-resettlement

to the sponsor. This implies that thousands of

refugees each year have to find hundreds, or even
thousands of pounds to pay for legal advice and “We always have a waiting list –
that those who cannot find such sums may simply about twenty people at the moment,
be unable to bring their families to the UK. we try not to keep people on it for
With regard to their capacity to offer free legal more than three months.”
assistance for RFR, the organisations interviewed (Supervisor, University law clinic, 11 May 2019)
reported a vast degree of variation in the number
of cases they are able to take on. Some of the
largest providers work with up to one hundred
sponsors annually, whilst others only manage to
take on a couple of cases a year as part of a range “We have an informal waiting list
of legal assistance services. Some organisations but we’re always closing it. In
run waiting lists, but many more do not, for the ten months, last year we got 250
simple reason that they know that they cannot referrals and took on maybe 20
manage a waiting list and that refugees are better cases.”
off trying to find alternative solutions. For those that (Operations Manager BRC, Refugee Family
do run them, waiting lists are usually about three Reunion Project, 27 July 2019)
months long. All of the organisations that have
waiting lists stated that they give sponsors a list of
the evidence required when they take them on in
an attempt to ensure that they are as prepared as
possible when the time comes for them to prepare “There are far more refugees seeking
the application. Applicants are normally only legal assistance than there is legal
prioritised in very particular circumstances, such assistance available, because of the
as cases of serious illness, pregnancy or where an cuts to legal aid, some firms going
applicant is about to turn eighteen. out of business, charities going out
of business. We are all representing
What is not in doubt is the overall lack of as many refugees as we possibly
capacity in the UK charitable sector for provision can to the point that, if the number
of assistance without cost to the sponsor. All of refugees drops, the number of
organisations interviewed said that they felt refugees that we represent for
that, since LASPO, the pressure and demand family reunion will not change
for assistance was increasing, as more service because the provision of legal
providers close. Many service providers expressed services has crashed, so the number
distress in respect of the situation, with several will remain constant.”
interviewees mentioning feeling guilty about not (Supervisor, University law clinic, 11 May 2019)
being able to help more clients.
 Refugee Family Reunification in the UK: Challenges and Prospects | 79

6.2.2 Regulation sector and that, following the cuts to legal aid
in 2012, the regulator became concerned about
As discussed in chapter 5, organisations and
the drop in numbers of OISC-registered not fee-
individuals providing legal assistance with RFR
charging organisations and decided to focus on
applications must be regulated by the SRA or
building up the sector.388 To this end, a dedicated
OISC. The majority of charities which provide legal
Community and Voluntary Sector Support Group
assistance (with the exception of Law Centres
has been set up to facilitate registration of pro
and specialist immigration advice charities such
bono organisations,and the OISC website now
as GMIAU, who are registered with the SRA) are
contains a separate section for Community
registered with and regulated by OISC.
and Voluntary Sector (CVS) organisations.
Interviewees both from the charitable sector and Registration is free for pro bono organisations and
from private solicitor firms were asked about their their caseworkers, and individual caseworkers are
views on the level of qualification needed for RFR exempted from examination fees.
work (currently Level 2), and whether this affected
the ability of their organisation to carry out the Table 9: Number of OISC-registered
work. A number of interviewees noted that there organisations in the UK389
is a clear inconsistency between the fact that RFR
under Part 11 of the Immigration Rules is regarded March 2018 March 2019 March 2020
as a straightforward immigration matter for the
purpose of determining whether it is a matter Fee-
996 918 912
charging
requiring legal aid, whilst at the same time being
regarded as a complex legal area which requires Not fee-
215 236 313
Level 2 OISC accreditation. However, none of the charging
interviewees suggested that advice for RFR should
be unregulated, and only one suggested that it Total 1567 1510 1615
could be regulated at Level 1. The consensus was
that, given the complexity of RFR application and Table 10: Number of OISC-regulated
what is a stake for sponsors and applicants, family organisations by Level as of March 2020390
reunion work should be regulated at least at Level
2, with some arguing that it should be regulated Fee- Not fee-
at Level 3. In that latter regard, there was some Total
charging charging
discussion as to whether Level 2 OISC regulation
Level 1 505 531 1036
was in fact sufficient to guarantee that the advisers
had the skills needed, or whether some form of ad Level 2 92 56 148
hoc accreditation would be more suitable. Several
advisers noted that the fact of having passed the Level 3 353 78 431
OISC Level 2 examination does not guarantee that
the individual in question is well equipped to deal
with family reunification cases. One noted that, at
the most, in order to qualify at Level 2, advisers As illustrated by Table 9, in line with OISC’s stated
would normally receive five days of training, and aims, the number of non-profit organisations
it was unlikely that there would be a question registered with the regulator has been increasing
concerning RFR in the Level 2 examination. in recent years. However, the most recent
data published by OISC (Table 10) show that
Regulation by OISC is often seen by those the number of not fee-charging organisations
working in the sector as onerous and time- registered at Level 2 or above remains worryingly
consuming. However, several interviewees low. Currently there are only 134 not fee-charging
stated that they felt that in the last few years organisations in the entirety of the UK registered to
the regulator had moved towards a more give immigration advice at Level 2 and 3.391
enabling approach for the charity sector. Those
interviewees who had registered or been audited In addition to the work by OISC, an important
by OISC more recently said that they had project which should be highlighted for its
found the process helpful and empowering. contribution to enhancing capacity in the sector
is the Frontline Immigration Advice Project,
Indeed, OISC staff emphasise that the regulator established by Refugee Action in 2016. The project
is keen to work with the pro bono and charity aims to support frontline organisations so that
 Refugee Family Reunification in the UK: Challenges and Prospects | 80

they can provide high quality immigration advice upskilling new staff. For many organisations
and provides assistance to organisations which where the legal resource is one person, or for
want to register with OISC, as well as training and people wishing to begin a legal project, this can
casework support.392 be very difficult. In addition, several interviewees
noted how training up internal staff and volunteers
The work of OISC in this area, together with the carried its own risks, with qualified advisers then
work of the Refugee Action Frontline Immigration moving on to better paid jobs within the sector.
Advice Project, has gone some way to starting to
re-build the immigration advice sector, which was One possible solution, mentioned by several of the
decimated by LASPO. However, there is clearly organisations interviewed, would be the creation
more to do to develop organisational capacity at by OISC of a dedicated Level 2 registration for
Levels 2 and 3.393 organisations and individuals who wish to work
exclusively on RFR. Indeed, part of the remit of
Despite the positive attitude of the regulator, OISC the OISC CVS Support Group is to consider, pilot
regulation is still seen by some in the refugee and monitor requests for specialist registrations
sector as inhibiting the development of pro bono relating to specific areas of legal work. Requests
legal advice, whilst not acting as an effective that have so far been considered include those
deterrent to unscrupulous fee-charging advisers from organisations supporting victims of domestic
who operate with impunity. Every solicitor and violence to register only for work under the destitute
charity staff member interviewed had stories domestic violence (DDV) concession and those
to tell of fee-charging regulated advisers who from organisations working with immigration
had given poor advice, often leading to negative detainees in relation to work on bail applications. An
decisions from the Home Office, that in some ad hoc specialist registration at Level 2 exclusively
cases were then impossible to overturn because for RFR work was used to enable the creation
they adversely affected the credibility of either the of the British Red Cross Family Reunion Project.
sponsor or the applicant. According to OISC, the British Red Cross was seen
as an obvious candidate for a RFR-only qualification
There are two things about this – there because of the organisation’s record and expertise
aren’t sufficiently qualified people to do this in the field of refugee family reunification, through
their refugee services, travel assistance programme
work, it’s a real problem for small
and family tracing services, and its excellent training
community groups who can’t employ
and supervision regimes for their volunteers. A
someone to do all the work. It makes it similar specialist Level 2 registration enabling
really hard for community organisations organisations and individuals to work exclusively on
and at the same time there are so many RFR cases could be formalised and made available
cowboys operating with impunity. Good for charitable organisations which are interested
providers should be funded by the legal aid in providing legal assistance for RFR applications,
agency. On the other hand, it can be really thereby ensuring that high quality specialised
complex work – I think it should all be advice can be confidently provided even by smaller
checked by a supervisor, but how many organisations.
supervisors are there in the country?” 6.2.3 Funding
(Solicitor, Law Centre, 20 February 2019)
The cuts to legal aid introduced by LASPO have
Difficulties in employing suitably qualified had a devastating effect on solicitors and charities
caseworkers was identified as a real problem, providing legal support to refugees and asylum
particularly within the charity sector, but also seekers. However, the charity sector, and the
by some of the solicitors interviewed. All of the immigration advice sector in particular, are also
charities interviewed for this report said that they suffering from an overall loss of funding as a result
had problems recruiting to cover positions which of the financial crisis and austerity.
needed a Level 2 caseworker, or higher. Some
charities combat this problem through internal Year-on-year increases in demand for services,
training of new staff or encouraging existing staff coupled with an ever-increasing concern that they
to undertake training and gain accreditation. will not be able to meet their income needs have
However, this is only possible if there are other been the signature of the charitable sector since
qualified and experienced caseworkers in the the last recession. A survey of charity leaders
organisation who have the time to invest in carried out by the Charities Aid Foundation (CAF)
 Refugee Family Reunification in the UK: Challenges and Prospects | 81

in November 2018 concluded that Law Centre, North East Law Centre, RMC) receive
funding from the Families Together Programme.
Income generation remains the number one There is therefore a real risk that, once the funding
challenge for organisations, followed by from this programme ends, the availability of pro
meeting demand for services and reductions bono refugee family reunification will be further
affected.
in funding. This comes at a time when over
four in five charity leaders state that demand 6.3 The way forward:
on their organisation’s services had
increased over the last 12 months.394
collaboration, partnership
and specialisation
These comments pre-date the COVID-19
pandemic and the ensuing economic crisis, Since 2012, organisations in the refugee sector and
which is almost certain to lead to further cuts in other charitable actors in England and Wales have
funding.395 Whilst income has actually grown slowly stepped up in order to support refugees who seek
since a downturn following the 2008 financial to be reunited with their families. Whilst this has
crisis, a larger proportion of charitable income now not been enough to fill the gap created by the cuts
goes to larger charities. More than half (£29bn) of in legal aid and the other sweeping cuts to local
the sector’s income was generated by major and services in recent years, refugee support charities
super-major voluntary organisations (i.e. those with have real value to add to this vital area of protection
an income over £10m).396 work.

In addition, local authorities in England and Wales, A first advantage of the sector is that of
which traditionally have contracted work from specialisation. By contrast with solicitors in private
charities, lost 38% of their central government practice, who generally cover the whole range
funding between 2008/2009 and 2018/2019 and of immigration applications, charities have the
as a consequence have had to cut funding to both possibility to set up single-issue projects focusing
local charities and local services.397 Government on refugee family reunification. Caseworkers
funding provides approximately 29% income to working on such projects develop an in-depth
charities in 2020, but the proportion donated understanding of the subject, and, as they gain
by local government (as opposed to central experience, learn how to make applications in a
government) has fallen substantially.398 way that is most likely to be successful. A project
that focuses exclusively on one type of application
The lack of funding has been a recurrent theme in is also in a much stronger position to look at other
the interviews with stakeholders from the refugee elements of the overall process, such as finding
sector, who all agree that there is still not enough funding for DNA testing, or providing additional
funding to replace the loss of legal aid for RFR and psycho-social support for refugees undergoing the
to meet the needs of refugees seeking assistance process.
with the family reunification process. The situation
is likely to worsen with the loss of EU funding after Specialisation is not without its risks and one of
Brexit and the challenges that the economy will the problems that may occur is a concentration of
face recovering from the effects of the pandemic. knowledge and skills in one place, adding to the
already problematic lack of geographic coverage.
Funders who have historically worked with refugee There are however examples of projects in other
and migrant charities are faced with a situation sectors which have successfully avoided such pitfall
where they are not able to step in to replace the by creating a partnership network which allows
funding which has been lost as a result of LASPO, for that centralised knowledge and expertise to be
but are eager to work with charities to continue shared with and relied upon by local organisations.
their work. The Paul Hamlyn Foundation and The Frontline network, which supports workers
Trust for London have recently published research from the public, statutory and voluntary sectors
about new ways of increasing immigration advice working with those experiencing homelessness,
provision399 and innovative thematic projects is an excellent example of this approach.401 Based
like the Families Together Programme, and the in central London, the organisation works with a
upcoming Access to Justice Initiative400 are aimed number of partners throughout the UK who run
at engendering strategic change across the sector. regional networks, providing opportunities for those
One of the major concerns around funding is that in the sector to meet face-to-face and to discuss
several of the projects (GMIAU, Central England specific local situations. There are possibilities within
 Refugee Family Reunification in the UK: Challenges and Prospects | 82

the Law Centres Network, or the Citizens Advice

UK network, to disperse some of the refugee family Partnership in action
reunification work in a similar way.
Charities also have the advantage of being able to The Central England Law Centre works
make use of volunteers to increase their capacity. in partnership with the British Red Cross.
From organisations which work with volunteers from BRC staff provide wrap-around psycho-
the refugee community, to university law clinics in social services for sponsors both pre- and
which students volunteer, to the many organisations post-arrival and work with a specially trained
which rely on the goodwill of solicitors, retired group of volunteers who are drawn from the
or otherwise, providing their services pro bono, refugee community. Once sponsors have
there are many ways in which charities are able been screened by the BRC, they are referred
to maximise that capacity. Volunteers are used to the Law Centre. A solicitor there, with the
widely for administrative tasks, interpreting, and in help of volunteers, takes on straightforward
some cases preparing ECF applications. In many cases through the project. If she adjudges
organisations, at least some volunteers are legally the case to be too complex to be managed
trained and some are themselves OISC-registered by the project, she refers it to another pro
advisers. The model in which a qualified member of bono partner, the legal clinic at Birmingham
staff or volunteer supervises a team of unqualified University, who will prepare the application
volunteers who assist with the gathering of evidence for ECF funding, at which point the case can
and completion of forms, which are then reviewed be taken on by other solicitors in the Law
by the qualified adviser/solicitor, is common Centre.
throughout the charity sector. When the Centre for Research in Law at
Being heavily reliant on volunteers may sometimes the University of Bedfordshire set up its
have a destabilising effect on a project, as many Refugee Legal Assistance Project in
volunteers – and in particular new refugees – will 2013, it wanted to find a way of running the
gain the experience they need to move on to paid project without going through the rigours
employment. This is particularly true for those of registering with OISC, so it teamed up
volunteers who obtain OISC registration beyond with a local charity registered with OISC
Level 1, as the limited number of advisers registered at Level 2, Bedford Refugee and Asylum
at Level 2 and 3 (138 and 75, respectively in 2019)402 Seeker Support (BRASS). BRASS does
makes them extremely employable. However, not have sufficient resources to work in
utilising the skills of volunteers from the refugee the area of RFR, but was able to provide
community, favoured as a model by many charities, the legal supervision for students from the
adds value to the project both through building Law School. The project runs one evening
the skills of individuals and adding authenticity to a week during term time and provides a
casework. win-win solution for both partners. BRASS
is able to report on the project as its own,
Organisations in the refugee sector are also boosting their own value for money to
used to spreading their resources by developing funders and other stakeholders, while
informal or formal partnerships with each other, students get genuine work experience in an
and with solicitors. None of the organisations area of law that they might not otherwise
interviewed said that it worked completely alone experience during their studies. Further, the
and without partnerships. Unsurprisingly, 75% of sponsors and applicants get an excellent pro
the organisations interviewed mentioned that they bono service. RLAP also works closely with
work closely with the British Red Cross. For those the BRC Family Reunion Project in London,
providing legal advice, access to the Family Tracing accepting referrals for straightforward
Services of the British Red Cross are also very applications. This reduces the waiting list of
important. For refugee service charities, the most the BRC project, allowing BRC caseworkers
commonly accessed service from the British Red to focus on more complex application, whilst
Cross is financial assistance with travel costs. at the same time enabling RLAP clients
to take advantage of and access to travel
assistance.
 Refugee Family Reunification in the UK: Challenges and Prospects | 83

The experience of the Sheffield Hallam British Red Cross as part of this project to
Refugee Family Reunion Clinic illustrates establish the Scottish Welfare Fund Family
how, given the appropriate resources, a Reunion Grant, which provides financial
university law clinic can be developed and support before the arrival of the family in the
the benefits such programmes can provide country which works to avoid destitution.403
to students, the university’s reputation and,
most importantly, refugee clients. The clinic,
which ran as a pilot in 2018-2019, was fully A further way in which partnership between
established at the beginning of the 2020 organisations working on refugee family
academic year. The project is able to hold reunification can be strengthened, and one which
surgeries throughout the year through an would provide widespread support in return
international exchange programme. The for only minimal outlay, is the creation of online
clinic is to rebrand as the Helena Kennedy communities of practice.404 The value of on-line
Centre (HKC) Refugee Rights Clinic from networks has been emphasised recently by the
January 2021 and, through funding obtained COVID-19 pandemic and the creation of a shared
from the EU, has entered into partnerships space where refugee family reunification issues
with St Augustine’s in Halifax and PAFRAS could be discussed, best practices shared and
in Leeds. These partnerships will allow training offered, managed by an organisation with
the clinic to extend its geographic reach a real expertise in complex casework, could be a
throughout Yorkshire, with specialist OISC particularly effective intervention in this area.
Level 2 caseworkers in each of the partner
Online networks are not unusual in the charity
organisations who will be supervised by the
sector and constitute a cost-effective way of
clinic The clinic is also recruiting an in-house
sharing experience and information. For instance,
solicitor who will work exclusively on RFR-
the Refugee Legal Group shares information
related appeals and reconsiderations and
about all aspects of asylum law, and the Frontline
seek to identify opportunities for strategic
Immigration Advice Project funds an on-line
litigation. The innovative relationship
network for newly qualified individuals and
between the University, local charities and
organisations.
a major funder points to the importance of
development partnerships and networks, and An excellent example of a single-issue online
the potential for providing support for RFR network is the Asylum Support Advice Network
through universities. This project will make the (ASAN), set up and coordinated by a small London-
HKC Refugee Rights Clinic one of the largest based organisation supporting destitute migrants
pro bono providers of legal assistance for and asylum seekers.405 ASAN brings together over
RFR in the UK. 900 members from voluntary sector organisations
and law firms, funding bodies, and some public
Since July 2019 the British Red Cross
bodies.405 It enables its members to share
Family Reunion Integration Services
knowledge and experience about asylum support
project in eight locations in Scotland, Wales,
law and to get advice on specific issues. The
England and Northern Ireland aims to
organisation also maintains a rota of pro bono
support 900 refugee families and includes
legal support for rejected asylum seekers who
a strong element of research, to pilot
need assistance appealing the decision of the
different models of integration. The project
Home Office to withdraw their support, and
is designed to offer wrap-around support
provides training and uses the evidence base
post-arrival, working closely with families
from its work to advocate for the rights of the
to fulfil their immediate needs and enable
people they support.
them to access integration activities. The
project is also working in partnership with The Families Together Programme recently set up
local authorities to identify suitable housing an online group which provides an opportunity
before a family’s arrival, thereby avoiding for individuals and organisations working on RFR
what is often a crisis point for refugees and cases to connect and network, share knowledge,
their families. The Scottish government, identify common issues, and seek advice and
recognising the need for support for refugee support from colleagues on specific practical or
families being reunited, have worked with the legal questions relating to their RFR casework. If
appropriately funded and managed, this group
 Refugee Family Reunification in the UK: Challenges and Prospects | 84

has the potential to develop into a structured and providing a forum where the issues encountered
inclusive community of practice, along the lines by caseworkers, advisers and practitioners who
of ASAN. Such community of practice would deal with RFR cases on a daily basis, the creation
provide a real benefit to the sector in terms of of an inclusive community of practice will facilitate
providing a repository for the wealth of expertise the identification of transversal issues and prompt
on RFR which many in the voluntary sector have discussion on strategic issues which can then
accrued in the years since LASPO. In addition, by feed into advocacy and campaigning activities.
 Refugee Family Reunification in the UK: Challenges and Prospects | 85

6.4 Main findings

Recommendations
and recommendations
Main findings - Relevant actors within the refugee
sector should work to broaden
- In the years since the entry into force of the partnerships built through the
LASPO, the refugee sector and other not-for- Families Together Programme and
profit actors have actively tried to fill the gap the Families Together Coalition, so
left by the withdrawal of publicly-funded legal as to include solicitors and barristers
assistance for RFR cases by creating projects working on RFR, local authorities and
and forging partnerships aimed at providing international NGOs.
free legal assistance to refugees navigating
the family reunification process. Despite this, - Relevant actors within the refugee
at present, the pro bono sector is struggling sector should work together to create
to meet the demand for free legal support for a dedicated online community of
RFR applications. The provision of legal advice practice for those involved in refugee
is not the focus of the activities of most refugee family reunification, so as to facilitate
charities and even those charities which provide the sharing of information, resources
legal assistance to refugees often have only and discussion throughout the sector.
limited capacity to take on RFR cases. Law
Centres and other pro bono advisers are at - Relevant actors within the refugee
present severely under-resourced and very few sector should work together to set
of them have the resources to take on RFR up independent monitoring and
cases. evaluation of the impact of the
onshoring process upon the quality of
- The enhanced regulation of the provision of
decisions on RFR, particularly those
immigration advice, whilst necessary, imposes
relating to complex, “outside the
an additional level of complication for charities
Rules” applications.
and not-for-profit organisations wishing to
provide assistance with RFR applications. - OISC should continue with ongoing
- The creation of clinical legal education projects initiatives aimed at promoting a better
focusing entirely or in part on RFR in the years understanding of its role in relation to
since the entry into force of LASPO is an regulation of the voluntary sector.
important development. University law clinics
have helped to fill the gaps in free qualified legal - In order to support not-for-profit
support left by LASPO, whilst at the same time organisations wishing to provide
nurturing the next generation of immigration pro bono legal assistance for RFR,
lawyers. OISC should simplify the process
for registration of organisations
- The perceived difficulty of obtaining OISC and advisers wishing to undertake
registration at Level 2 has to some extent only RFR casework by creating a
prevented refugee charities and other not- dedicated Level 2 registration for
for-profit actors from stepping in to cover the RFR work.
gap in free legal assistance resulting from the
withdrawal of legal aid for RFR.
 Refugee Family Reunification in the UK: Challenges and Prospects | 86

7 Conclusions
and Recommendations
between parents and minor children – regardless of
This research set out to examine in a whether the minor is the sponsor or the applicant
comprehensive manner the UK legal in the family reunification process. The so-called
framework relating to refugee family “anchor children” argument advanced by the UK
reunification and the way it operates Government in order to justify the policy choice of
in practice, with a view to identifying not allowing children to act as sponsors for RFR
the legal and practical issues faced by is not supported by either the available evidence
refugees who wish to be reunited with or the experience of those other European States
their families. which allow unaccompanied refugee children to
act as sponsor for their immediate family members.
The analysis in the report shows that, Allowing children to sponsor their parents and
despite some significant positive siblings is not only required by the UK’s international
developments in recent years, the UK obligations, but would respond to a real need as
system for refugee family reunification well as bringing the UK family reunification system in
presents some fundamental flaws, which line with widespread practice elsewhere in Europe.
prevent refugees and other beneficiaries
of international protection in the UK Second, the narrow approach adopted in Part 11
from fully enjoying their right to family of the Immigration Rules with regard to the family
reunification. Such flaws relate both to the members who are eligible for RFR is not in line
legal framework, and to the policies and with the generally accepted minimum standards
practices surrounding the RFR process. The under international law, nor with the practice of
following section provides an overview of the other European States. Every sponsor and every
main findings of the research in relation to organisation interviewed argued for an expansion of
the thematic issues identified in the report the categories of family members who are eligible to
and makes recommendations for concrete apply for RFR.
steps aimed at improving the efficiency and
Whilst for dependent family members who are
fairness of the system.
not eligible for RFR in principle there exist other
routes to family reunification, particularly those
under Appendix FM of the Immigration Rules,
The current UK legal framework those routes are both more expensive and subject
on refugee family reunification to burdensome requirements and in most cases
they do not represent a viable option for refugees.
is not in line with international The possibility for family members who do not fit
standards and best practice the narrow requirements for RFR under Part 11 of
the Immigration Rules to be granted leave “outside
There are several issues with the current legal the Rules” if there are exceptional circumstances
framework which should be addressed as a or compassionate factor does not represent an
matter of urgency in order to bring it in line adequate solution for complex cases concerning
with the UK’s international obligations and dependent family members. The fact that there is
European and international best practice. no clear avenue for the submission of applications
which do not meet the requirements in Part 11 is
First, not allowing unaccompanied refugee children particularly problematic, as refugees who seek to
to act as sponsors for RFR is not only unfair, but be reunited with a family member other than their
is also in breach of the UK’s obligations under spouse or dependent minor children will normally
international law, in particular those deriving from need to obtain specialist legal advice simply in
the UN Convention on the Rights of the Child. That order to decide whether it is possible to apply,
Convention is binding on the UK and imposes an and how.
obligation to pursue the best interests of the child,
which, in most cases, will require family reunification
 Refugee Family Reunification in the UK: Challenges and Prospects | 87

The Immigration Rules are defective insofar as they

fail to provide a route for family reunification for post-
flight minor children of a refugee who come to the
UK unaccompanied to join their refugee parent. In
addition, the rules on family reunification for adopted
children of refugees are unnecessarily complex
and difficult to navigate and create an unjustified
difference in treatment between de jure and de
facto adopted children.

Recommendations

- Give unaccompanied refugee children

in the United Kingdom the right to
sponsor their parents and minor
siblings to join them, as required by
the UK’s international obligations.

- Expand the categories of who

qualifies as a family member for the
purpose of RFR to allow refugees in
the UK to sponsor their adult children
and siblings under the age of 25, and
dependent parents.

- Ensure that applications for

dependent family members who
are currently not expressly eligible
for RFR are brought “within the
Immigration Rules” by adding a
flexible and open-ended category
based on a broad notion of
dependency to the existing categories
of family members eligible for RFR.

- Amend the Immigration Rules to

create a clear route for post-flight
minor children coming to the UK on
their own to join a refugee parent.

- Amend the Immigration Rules to

provide for a clear, consistent and fair
route for applications by both de jure
and de facto adopted children of a
refugee.
 Refugee Family Reunification in the UK: Challenges and Prospects | 88

Refugee family reunification is a

Recommendations
protection matter and should be
treated as such
- The Home Office should recognise
explicitly that RFR is a protection
There appears to be growing recognition
rather than an immigration matter and
within Government (although no explicit
ensure that all processes relating to
policy statement has yet been made in that
RFR reflect this.
regard) that refugee family reunification
is closely linked to the right to asylum - The Home Office should ensure
and therefore falls to be treated as a that all information relevant to RFR
protection matter. Quite apart from this, RFR is accurately captured during the
constitutes an important tool by which family sponsor’s asylum process asylum
members of refugees, who may themselves caseworkers to provide information
be at risk of persecution or serious harm, about the family reunification process
may reach safety. to all asylum seekers during their
The Home Office’s decision to transfer the asylum interviews.
decision-making process relating to RFR to a
- The Home Office, in consultation
specialised team within the Asylum Directorate
with relevant stakeholders, should
is a move in the right direction, which should be
explore the possibility of further
followed by a change of approach with regard to
strengthening the link between the
the availability of legal aid for RFR applications.
sponsor’s asylum process and the
Although it appears that there has come to be subsequent family reunification
a better understanding on the part of asylum process by introducing the
caseworkers of the need to take details of “ghosting” of Refugee Family Reunion
family members during asylum interviews, there applications during the refugee status
is still scope for improvement. In particular, determination process.
the evidence is that most individuals going
through the asylum process do not have a clear
understanding of the family reunification process.
More needs to be done to ensure that refugees
are properly informed of the possibility of bringing
their close family members to the UK through
RFR and of the requirements of that process.
 Refugee Family Reunification in the UK: Challenges and Prospects | 89

The RFR application process

Recommendations
is not straightforward and
evidentiary requirements - Simplify and rationalise the
are particularly burdensome Immigration Rules governing RFR and
Family Member visa applications to
The RFR application process is not ensure that they are accessible and
straightforward and, in the vast majority understandable.
of cases, refugees require qualified legal
assistance in order to navigate it. - The Home Office should monitor
the functioning of the new online
The complexity of the process derives in large application system and address any
part from deficiencies and the lack of clarity of remaining technical issues, including
the Immigration Rules and associated Home those relating to the functionality of
Office Guidance, but extends also to the the document upload system.
process of making an application through the
online application system and trying to book - The Home Office should monitor
appointments at the VACs now managed by the functioning of VACs operated
commercial entities. by commercial partners, including
The online application system has become more ensuring the availability of free
user-friendly and now includes a dedicated appointments for RFR applicants.
form for RFR applications. However, no matter
- The Home Office should take steps to
how much the system is simplified, it remains
ensure that the approach of decision-
the case that, without an excellent grasp of the
makers to evidence and evidentiary
English language and good IT literacy, as well as
requirements is in line with the Home
an understanding of the way in which the Home
Office’s own guidance and takes
Office operates, it will always be difficult for most
into account the difficulties which
refugees to navigate the RFR process without
refugees may encounter in producing
expert legal help.
documentary evidence.
Evidentiary requirements remain particularly
burdensome. Despite the Home Office’s own - The Home Office should mandate
guidance, it is clear that decision-makers often decision-makers to make increased
expect to see documentary evidence which use of the possibility to interview
simply may not be available to refugees. DNA sponsors and applicants whenever
evidence, which, although not mandatory, is they consider that the evidence
sometimes indispensable due to the prevailing submitted with the application is not
approach of the Home Office to assessing fully satisfactory.
evidence, represents a significant cost for those
submitting RFR applications.
There appear to have been some changes in
practice following the “onshoring” of decision-
making to the Asylum Directorate in Sheffield. A
significant positive development is that decision-
makers now appear to be more prepared to make
contact with sponsors or their representatives in
order to ask for additional evidence, rather than
simply rejecting an application on the basis that
the evidence is insufficient. That said, it remains
the case that use is made only very infrequently
of the possibility of interviewing sponsors when
the evidence submitted with the application is not
satisfactory.
 Refugee Family Reunification in the UK: Challenges and Prospects | 90

The Home Office decision- appear frequently to ignore the Home Office’s own
guidance.
making process has improved,
but the “culture of disbelief” The positive operational changes implemented
by the Home Office in recent years, including
remains an issue onshoring of RFR applications and their transfer to
a team within the Asylum Directorate, risk having a
There have been marked steps towards
limited effect on the quality of RFR decisions if they
improvement of the Home Office decision-
are not accompanied by a meaningful programme
making process in the last few years. The
of “major culture change” aimed, inter alia, at
move of the decision-making process from
eradicating the culture of disbelief from all areas of
ECOs based in embassies around the world
the Home Office.
to a single UK-based team has resulted in an
overall improvement in communication and
has the potential to lead to better-quality and
more consistent decisions. Recommendations
There remain serious concerns about the quality
of decision-making, particularly for non-standard, - The Home Office should improve
complex applications in which the existence of internal monitoring and reporting
exceptional circumstances or compassionate systems in order to ensure quality
factors should lead to a grant of leave “outside control and transparency of
the Rules”. In response to the criticism by the decision-making in respect of RFR
ICIBI, the Home Office has improved the relevant applications, particularly those
guidance for decision-makers and both the ICIBI concerning complex, non-standard
and some of the practitioners interviewed have cases and grants of leave “outside the
reported noticing a small increase in the number Immigration Rules”.
of grants made outside the Rules in recent years.
However, the lack of published data on the - The Home Office should engage
numbers of applications refused, the reasons for fully with the recommendations of
refusal, and number of appeals and resubmission the Windrush Review and design
makes it extremely difficult to assess any trend in and implement a meaningful and
the decision-making process other than through radical programme of “major cultural
anecdotal evidence. change” aimed at eradicating the
“culture of disbelief” in all areas of the
The “culture of disbelief” within the UK asylum asylum and immigration system.
system, which has been consistently documented
over many years, is seen by many in the sector to
be the most pervasive systemic factor influencing
poor decision-making in RFR cases. This culture of
disbelief, and target-driven service delivery, is seen
as the main cause of a decision-making process
that appears too often to be about looking for
reasons to refuse rather than to grant applications,
and a preoccupation with the quantity of cases
dealt with in a time period, rather than the quality,
correctness and fairness of the decisions. The
culture of disbelief fuels an environment in
which evidentiary requirements are applied in
an unreasonable fashion and decision-makers
 Refugee Family Reunification in the UK: Challenges and Prospects | 91

The lack of legal aid for RFR and remain in debt for many years afterwards,
thus impeding their integration. The lack of funding
remains a significant obstacle impinges further on families after arrival, when they
to the enjoyment of the right to may spend months staying in poor quality bed
family reunification and breakfast accommodation, be affected by
cuts to English language classes, problems with
The fact that there is no legal aid for RFR accessing benefits and face difficulties with longer-
is as significant a problem today as it was term integration. The pressure put on sponsors and
when LASPO entered into force in 2013. families to obtain quite large sums of money to fund
the family reunification process at a time when they
The ECF scheme, which was meant to cover the are recovering from recent traumatic experiences in
gap left by the withdrawal of legal aid, is regarded their home countries or on the journeys to reach the
as grossly inadequate to fulfil that function by UK, as well as an often gruelling asylum process,
virtually everyone in the sector. Although ECF is can lead to family breakdown.
now relatively easy to obtain for immigration cases,
including RFR applications, the current ECF rates Recommendations
are insufficient to cover the work needed for even
a single RFR application, let alone applications for
several family members. This means that, as charity - Given the complexity of the
workers providing support to refugees lament, it is RFR application process, what is at
extremely difficult (and in some parts of England stake for applicants and sponsors and
and Wales almost impossible) to find a solicitor the nature of refugee family
who is willing to take on complex applications or reunification as an instrument of
appeals, even when ECF is obtained. protection, legal aid should be
reinstated for all RFR applications
The cost of professional legal support represents
only a fraction – albeit a considerable one – of the - Pending the reintroduction of legal
overall costs involved in the family reunification aid for RFR, the levels of fees and
process. Other costs may include those incurred disbursements available through ECF
for DNA and TB tests, in-country (or international) should be increased so as to make it
travel of the applicants to the VAC and related viable for practitioners to take on
accommodation costs, the costs involved in RFR cases.
obtaining documentation and, for those refugees
who are not eligible or able to access travel support
from charities, the costs of flights for the family
to travel to the UK. The overall costs incurred by
refugees during the family reunification process can
total many thousands of pounds, and refugees are
very unlikely to have saved or be earning significant
amounts by the time they come to make an
application for reunion with their family. Most borrow
money from friends, churches or communities
 Refugee Family Reunification in the UK: Challenges and Prospects | 92

The pro bono sector has stepped One of the reasons why voluntary organisations
may be unwilling to provide assistance for
in to fill the gap in free legal RFR applications is a misinformed perception
assistance created by LASPO, about the difficulty of registering with OISC. In
but it is unable on its own to fully reality, the regulator is committed to supporting
meet demand for RFR cases the development of immigration advice within
the voluntary sector, and is willing to consider
applications for registration exclusively for RFR
The voluntary sector has reacted to the cuts
work in appropriate circumstances.
to legal aid introduced by LASPO and many
refugee organisations have stepped in to try
to fill the gap left by the withdrawal of legal
aid for RFR.
Recommendations
The research provided insights into a range of
- OISC should continue with ongoing
projects providing assistance to refugees seeking
initiatives aimed at promoting a better
to be reunited with their families, all of which have
understanding of its role in relation to
been established as a response to LASPO. In
regulation of the voluntary sector.
many respects, the loss of legal aid and funding
cuts have resulted in this particular aspect of the - In order to support not-for-profit
refugee experience in the UK being subject to organisations wishing to provide
special scrutiny and has forced the sector to come pro bono legal assistance for RFR,
up with innovative solutions. OISC should simplify the process
The voluntary sector has the advantages of for registration of organisations
volunteerism, partnership and networking and advisers wishing to undertake
experience. Some actors, including university only RFR casework by creating a
clinics, have developed a real specialism in the dedicated Level 2 registration for RFR
field, in a way that does not happen with the work.
majority of solicitors, whether private or legally
- Relevant actors within the refugee
aided. The creation of a strong network of
sector should work to broaden
organisations, solicitors and other institutional
the partnerships built through the
and private actors working on refugee family
Families Together Programme and
reunification would be a useful step to consolidate
the Families Together Coalition, so
and share the expertise and knowledge which has
as to include solicitors and barristers
been developed in various parts of the sector in
working on RFR local authorities and
the years since LASPO.
international NGOs.
However, whilst the present report focuses on the
refugee family reunification process, it should be - Relevant actors within the refugee
borne in mind that RFR work takes place in the sector should work together to create
context of the overall asylum/refugee situation a dedicated online community of
and refugee family reunification is one of many practice for those involved in refugee
competing needs in the sector. At present, there family reunification, so as to facilitate
exists a huge gap between the available capacity the sharing of information, resources
of different parts of the voluntary sector and the and discussion throughout the sector.
demand for legal assistance in relation to refugee
family reunification. Unfortunately, far too often, - Relevant actors within the refugee
that gap is filled by unscrupulous and unskilled sector should work together to set
private immigration advisers. There is a real need up independent monitoring and
for more refugee charities and other not-for-profit evaluation of the impact of the
actors to become regulated by OISC at Level 2 onshoring process upon the quality
so that they are able to provide much needed of decisions on RFR, particularly
free legal assistance. those relating to complex, “outside
the Rules” applications.
 Refugee Family Reunification in the UK: Challenges and Prospects | 93

Endnotes
1.  or discussion of the psycho-social impact of separation on
F (adopted 28 July 1951, entered into force 22 April 1954) 189
members of refugee families, see R. Marsden, Voices of Strength UNTS 137 (“Refugee Convention”), as amended by the 1967
and Pain: Impacts of Separation, Loss and Trauma on the Health Protocol Relating to the Status of Refugees Protocol relating to the
and Wellbeing of Reuniting Refugee Families (British Red Cross, Status of Refugees (adopted 31 January 1967, entered into force
2016), available at www.redcross.org.uk/-/media/documents/ 4 October 1967) 606 UNTS 267.
about-us/research-publications; Safe but not Settled: The Impact 10. See Annex A for a list of the organisations and service providers
of Family Separation on Refugees in the UK (Oxfam and Refugee whose staff were interviewed.
Council, 2018). 11. Art. 16(3), Universal Declaration of Human Rights (UDHR), A/
2. S
 ee https://familiestogether.uk RES/217(III); Art. 23(1), International Covenant on Civil and Political
3. The first substantial report to be published in the wake of LASPO Rights (ICCPR), 999 UNTS 171; Art. 10(1), International Covenant
was a comprehensive study published by the BRC in 2015: on Economic, Social and Cultural Rights (ICESCR), 993 UNTS 3;
see J. Beswick, Not So Straightforward: The Need for Qualified Preamble, para. 5, Convention on the Rights of the Child, 1577
Legal Support in Refugee Family Reunion (British Red Cross, UNTS 3 (CRC).
2015). Also of note is the report published by the Red Cross EU 12. Recommendation B, Final Act of the United Nations Conference
Office and the European Council For Refugees and Exiles (ECRE) of Plenipotentiaries on the Status of Refugees and Stateless
in 2017, which focuses on the disparities in the application of Persons, 25 July 1951, available at www.unhcr.org/protection/
international standards in countries across the EU, looking at travaux/40a8a7394/final-act-united-nations-conference-
areas such as access to legal aid, child applicants, costs of plenipotentiaries-status-refugees-stateless.html.
family reunion, evidential requirements and other aspects using 13. See A. Edwards, “Human Rights, Refugees and the Right ‘To
a comparative methodology ; see (A. Bathily and A. Faure-Atger, Enjoy’ Asylum”, 17 (2005) International Journal of Refugee Law
Disrupted Flight: The Realities of Separated Families in the EU 293, at p. 310.
(Red Cross EU Office and ECRE, 2014), available at https://www.
14. S ee, e.g., Arts 12 and 16(3) UDHR; Art. 17 ICCPR. Although the
refworld.org/docid/58514a054.html. In January 2019, Greater
Manchester Immigration Advice Unit (GMIAU) produced a succinct instruments in question do not expressly mention a right to family
unity as such, it is generally recognised that such a right is an
but particularly insightful overview of the situation in the North
essential precondition of the express negative duty of States not
West: see Briefing Paper on Family Reunion for Refugees in the
to interfere with the family unity of individuals under its jurisdiction.
North West (GMIAU, 2019), available at https://gmiau.org/refugee-
Note also Article 10 ICESCR, according to which “The widest
family-reunion. A recent publication by the Families Together
possible protection and assistance should be accorded to the
Programme, originally written as a submission to the LASPO
family, which is the natural and fundamental group unit of society,
post-implementation review, focuses on the need for legal aid to
particularly for its establishment and while it is responsible for the
be re-introduced for the process: see S. Holden, Cuts that Cost:
care and education of dependent children”.
The Impact of Legal Aid Cuts on Refugee Family Reunion (Families
Together, 2020) 15. Human Rights Committee, General Comment No. 19: Article
4. 23 (The Family); Protection of the Family, the Right to Marriage
See, e.g., UNHCR, Family Reunion in the United Kingdom (March
and Equality of the Spouses (1990), para. 5. According to the
2016), at www.unhcr.org/protection/basic/576019c67/family-
Committee (ibid.), such obligation derives from the combined
reunion-in-the-united-kingdom-briefing-paper-2016-576019c67.
reading of Art. 17 ICCPR (on non-interference with family unity)
html.
and Art. 23 (right to marry and found a family). For discussion,
5. ICIBI, “An Inspection of family reunion applications – January to see L. Manca, “Family Reunification in International Law: The
May 2016”, September 2016 “ICIBI RFR Report 2016”); ICIBI, “An Current United Nations Legal Framework and the Practice
interim re-inspection of Family Reunion applications received at of Human Rights Bodies”, 2 (2018) Nomos 1, at pp. 12-13.
the Istanbul Entry Clearance Decision-making Centre. December
J.C. Hathaway, The Rights of Refugees under International Law
2016 – March 2017”, July 2017,(“ICIBI RFR Re-inspection Report (Cambridge University Press, 2005), pp. 551-552; UNHCR, Family
(Istanbul) 2017”); ICIBI, “A re-inspection of the family reunion Reunion in the United Kingdom (above n. 4), at 2.
process, focusing on applications received at the Amman Entry
16. For an analysis of the relevant practice, see Hathaway, Rights of
Clearance Decision-making Centre. November 2017 – April 2018”,
Refugees (above n. 16), pp. 546-547. See also C. Costello and
September 2018 (“ICIBI RFR Re-inspection Report 2018”); ICIBI,
others, “Realising the right to family reunification of refugees in
“An inspection of family reunion applications (June-December
Europe” (Council of Europe, Issue paper, 2017) at p. 20.
2019)”, October 2020 (“ICIBI RFR Report 2020”). All of the
ICIBI reports are available at https://www.gov.uk/government/ 17. See ExCom Conclusions 1 (XXVII) 1975, para f; ExCom
collections/inspection-reports-by-the-independent-chief-inspector- Conclusions 9 (XXVIII) 1977, para a; ExCom Conclusions 15 (XXX)
of-borders-and-immigration. 1979, para e; ExCom Conclusions 24 (XXXII) 1981, para 8; ExCom
6. Conclusions 47 (XXXVIII) 1987, paras d, h, i; ExCom Conclusions
 efugees (Family Reunion) (No. 2) Bill (HC Bill 13) (sponsor
R
74 (XLV) 1994, para gg; ExCom Conclusions 84 (XLVIII) 1997, para
Angus Brendan McNeil), available at: https://services.parliament.
b; ExCom Conclusions 85 (XLIX) 1998, paras k, u, v, w, x; ExCom
uk/Bills/2017-19/refugeesfamilyreunionno2.html (14 July
Conclusions 88 (L) 1999, para b(iii); ExCom Conclusions 91 (LII)
2017); a parallel Bill was introduced in the House of Lords by
2001, para a; ExCom Conclusions 103 (LVI) 2005, para n; ExCom
Baroness Hamwee in 2018 (Refugees (Family Reunion) Bill
Conclusions 104 (LVI) 2005, para n(vi); ExCom Conclusions
[HL] 2017-19, at https://services.parliament.uk/bills/2017-19/
107 (LVIII) 2007, paras b, c, g, h. See UNHCR, Conclusions on
refugeesfamilyreunionbill.html). In addition to envisaging the
International Protection Adopted by the Executive Committee of
reintroduction of legal aid, the Bills proposed the expansion of
the UNHCR Programme 1975 – 2017 (Conclusion No. 1 – 114),
the list of family members who can apply for family reunification
October 2017, HCR/IP/3/Eng/REV. 2017
under the less burdensome procedure set out in Part 11 of the
Immigration Rules. 18. ExCom Conclusions 24 (XXXII) 1981, para 2; ExCom Conclusions
85 (XLIX) 1998, para w.
7. See Refugees (Family Reunion) Bill [HL] (HL Bill 15) (sponsor
Baroness Hamwee), at https://bills.parliament.uk/bills/2538 19. ExCom Conclusions 24 (XXXII) 1981, para 4.
8. See Ministry of Justice, “Post-Implementation Review of Part 1 of 20. Ibid., para 9.
the Legal Aid, Sentencing and Punishment of Offenders Act 2012 21. UNHCR’s Response to the European Commission Green Paper
(LASPO)”, February 2019, (“LASPO Review”). on the Right to Family Reunification of Third Country Nationals
9. See Article 1(a), Convention relating to the Status of Refugees Living in the European Union (Directive 2003/86/EC), February
 Refugee Family Reunification in the UK: Challenges and Prospects | 94

2012, available at https://www.unhcr.org/4f54e3fb13.pdf , at p. 41. U NHCR, Annual Tripartite Consultations on Resettlement –

16. Protecting the Family: Challenging in Implementing Policies
22. ExCom Conclusions 24 (XXXII) 1981, para .6. in the Resettlement Context, 20-21 June 2001, p. 2. On the
UNHCR’s interpretation of the notion of dependency, see also
23. See F. Nicholson, The Right to Family Life and Family Unity
UNHCR, “Summary Conclusions: Family Unity, Expert roundtable
of Refugees and Others in Need of Protection and the Family
organized by UNHCR and the Graduate Institute of International
Definition Applied (UNHCR, January 2018), available at https://
Studies, Geneva, Switzerland, 8–9 November 2001”, in Feller et
www.unhcr.org/en-us/5a8c40ba1.pdf,pp. 10-11; See also F.
al. (eds), Refugee Protection in International Law: UNHCR’s Global
Nicholson, The “Essential Right” to Family Unity of Refugees and
Consultations on International Protection (Cambridge University
Others in Need of International Protection in the Context of Family
Press, 2003), at 604-608, available at: http://www.unhcr.
Reunification (UNCHR, January 2018), available at https://www.
org/419dbfaf4.pdf, para 8
unhcr.org/5a8c413a7.pdf, pp. 5, 7.
42. See Human Rights Committee, General Comment No. 19 (above
24. “Where immigration is concerned, Art. 8 ECHR cannot be
n. 15), para 2: “when a group of persons is regarded as a family
considered to impose on a State a general obligation to respect a
under the legislation and practice of a State, it must be given the
married couple’s choice of country for their matrimonial residence
protection referred to in Article 23”.
or to authorise family reunification on its territory.” See Biao v.
Denmark (App, No. 38590/10), ECtHR [GC], 6 May 2016, para. 43. Human Rights Committee, General Comment No. 16: Article 17
117; Jeunesse v. the Netherlands (App. No. 12738/10), ECtHR (Right to Privacy). The Right to Respect of Privacy, Family, Home
[GC], 3 October 2014, para. 107; Tuquabo-Tekle et al v. the and Correspondence, and Protection of Honour and Reputation
Netherlands (App. No. 60665/00), ECtHR, 1 December 2005. (1988), para 5.
25. For commentary see C. Costello, The Human Rights of Migrants 44. Hathaway, Rights of Refugees (above n. 16), at p. 556.
and Refugees in European Law (Oxford University Press, 2015), 45. It should be noted that much of the ECtHR’s case law concerning
at pp. 127-130. the application of Article 8 in the context of immigration deals with
26. The “elsewhere approach” was first developed by the ECtHR in cases of deportation, rather than family reunification.
the case of Abdulaziz, Cabales and Balkandali v. United Kingdom 46. H. Lambert, “Family Unity in Migration Law: The Evolution of a
(App. No. 9474/81), 28 May 1985, paras 67-68. See also Gül More Unified Approach in Europe”, in V. Chetail and C. Bauloz
v. Switzerland (App. No. 23218/94), ECtHR, 19 February 1996, (eds), Research Handbook on International Law and Migration
paras 38-39; Sen v. the Netherlands (App. No. 31465/96), ECtHR, (Edward Elgar Publishing, 2014), p. 194, at pp. 205; H. Stalford,
21 December 2001, para. 40; Berisha v. Switzerland (App. No. “Concepts of Family under EU Law – Lessons from the ECHR”, 16
948/12), ECtHR, 30 July 2013, para. 60. For commentary, see (2002) IJLPF 410, p. 413; Costello, The Human Rights of Migrants
Costello, The Human Rights of Migrants (above n. 26), pp. 114 et (above n. 26), pp. 163-164.
seq. 47. Whilst for married couples family ties exist even when the partners
27. H. Lambert, “The European Court of Human Rights and the Right are not cohabitating, for unmarried couples it is necessary to
of Refugees and Other Persons in Need of Protection to Family assess whether the partners live together and for how long
Reunion”, 11 (1999) International Journal of Refugee Law 427, pp. they have done so, with a view to determining the existence
448-449. of “commitment to each other”. See Abdulaziz, Cabales and
28. Sen v. Netherlands (above n. 27), para. 40; Tuquabo-Tekle v. Balkandali (above n. 27), paras 62-63; Nicholson, Right to Family
Netherlands(above n. 25), paras 47-48. For commentary, see Life (above n. 24), pp. 22-23.
T. Spijkerboer, “Structural Instability: Strasbourg Case Law 48. Pini et al v. Romania (App. Nos 78028/01, 78030/01), 22 June
on Children’s Family Reunion” 11 (2009) European Journal of 2004, para 146; Nicholson, Right to Family Life (above n. 24), at
Migration Law 271. See also Costello, “Realising the right to family p. 24.
reunification” (above n. 17), at p. 21. 49. See, e.g., Schalk and Kopf v. Austria (App. No. 30141/04),
29. Sen v. Netherlands (above n. 27), para. 40. 24 June 2010, para. 94; Nicholson, Right to Family Life
30. Tuquabo-Tekle v, Netherlands (above n. 25), paras 48, 50. (above n. 24), at p. 25.
31. Sen v. Netherlands (above n. 27), paras 37, 39; Tuquabo-Tekle v. 50. See Berrehab v. the Netherlands (App. No. 10730/84), ECtHR,
Netherlands (above n. 25), para 50. 21 June 1988, para. 21; Ahmut v. the Netherlands (App.
No. 21702/93), ECtHR, 28 November 1996, para. 30; Gül v
32. Sen v. Netherlands (above n. 27), para. 40; Tuquabo-Tekle v.
Switzerland (above n. 27), para. 32; Nicholson, Right to Family Life
Netherlands (above n. 25), para 47.
(above n. 24), at p. 26.
33. Tanda-Muzinga v. France (App. No. 2260/10), ECtHR, 10 July
51. See, e.g., Onur v. the United Kingdom (App. No. 27319/07),
2014, para 75. See also Nicholson, “Essential Right” to Family
ECtHR, 17 February 2009, para. 44; Nicholson, Right to Family
Unity (above n. 24), at p. 20.
Life (above n. 24), p. 27.
34. Tanda-Muzinga v. France (above n. 34), paras 75, 79, 82, Mugenzi
52. Nicholson, Right to Family Life (above n. 24), pp. 27-28.
v. France (App. No. 52701/09), ECtHR, 10 October 2014, paras
54, 56, 58-59, 62. 53. See, e.g., Maslov v. Austria (App. No. 1638/03), ECtHR, 22
March 2007, paras 61-62; A.A. v. the United Kingdom (App.
35. Hathaway, Rights of Refugees (above n. 16), at pp. 543-547.
No. 8000/08), ECtHR, 20 December 2011, paras 46, 48-49;
36. See ECRE and Red Cross EU Office, Disrupted Flight (above n. 3), Nicholson, Right to Family Life (above n. 24), at p. 29.
p. 11. See also Nicholson, “Essential Right” to Family Unity (above
54. A.W. Khan v. United Kingdom (App. Nos. 47486/06, 6222/10),
n. 24), at p. 39; A. Staver, “Family Reunification: A Right for Forced
ECtHR, 10 January 2012, paras 32, 39-41; Nicholson, Right to
Migrants?”, Refugee Studies Centre Working Paper Series No. 15
Family Life (above n. 24), at pp. 28-29.
(2008), at p. 6.
55. Mustafa and Armağan Akin v. Turkey (App. Nos. 4694/03), 6 April
37. UNHCR Guidelines on Reunification of Refugee Families
2010, paras 18-19, 21; Nicholson, Right to Family Life (above n.
(July 1983), available at www.unhcr.org/uk/protection/
24), pp. 26-27.
globalconsult/3bd0378f4/unhcr-guidelines-reunification-refugee-
families.html, para. 5(a). 56. Moustaquim v. Belgium (App. No. 12313/86), ECtHR, 18 February
1991, para. 36; Boughanemi v. France (App. No. 22070/93),
38. Ibid.
ECtHR, 27 March 1996, para 35; Nicholson, Right to Family Life
39. Ibid., para. 5(b). (above n. 24), p. 29.
40. ExCom Conclusions 24 (XXXII) 1981, para 5; ExCom Conclusions 57. Nicholson, Right to Family Life (above n. 24), at pp. 29-30.
88 (L) 1999, para b(ii). See also Nicholson, “Essential Right”
58. Note, however, that it has been argued that the ECtHR’s approach
to Family Unity (above n. 24), p. 36; UNHCR Guidelines on
is more restrictive with regard to the concept of family life in
Reunification of Refugee Families (above n. 38), para. 5(c).
immigration compared to non-immigration cases, to the point of
 REFERENCES Refugee Family Reunification in the UK: Challenges and Prospects | 95

raising issues of non-discrimination under Art. 14 ECHR; see A. protection in their own right; see ExCom Conclusions 88 (L) 1999,
Desmond, “The Private Life of Family Matters: Curtailing Human para b(iii); EXCOM, Family Protection Issues (EC/49/SC/CRP.14)
Rights Protection for Migrants under Article 8 of the ECHR?”, 29(1) 4 June 1999, https://www.refworld.org/docid/4ae9aca00.html,
EJIL 2018, 261 at pp. 265-270. paras 9-10; Council of Europe, Family Reunification for Refugee
59. R. Brittle, “A Hostile Environment for Children? The Rights and and Migrant Children. Standards and Promising Practice, April
Best Interests of the Refugee Child in the United Kingdom’s 2020, https://rm.coe.int/family-reunification-for-refugee-and-
Asylum Law”, 19 Human Rights Law Review (2019) 735, at p. migrant-children-standards-and-pr/16809e8320, at 28; Hathaway,
767. Rights of Refugees (above n. 16), at pp. 541-542. See also
UNHCR, Annual Tripartite Consultations on Resettlement 2001
60. Ibid.
(above n. 42), para. 6.
61. The only exception to this is when family reunification would not be
71. A. John, “Family Reunification for Migrants and Refugees: A
in the child’s best interests as per Art. 3(1) CRC. Still, such a case
Forgotten Human Right?”, University of Coimbra Human Rights
must be considered carefully, in order not to constitute an arbitrary
Center Working Paper (2003), available at http://www.igc.fd.uc.pt/
or unlawful interference with the child’s right to respect for their
data/fileBIB2017724164832.pdf, at p. 35.
family life (Art. 16 CRC).
72. J.C. Hathaway and M. Foster, The Law of Refugee Status
62. On Article 22 CRC and the best interests of the child principle, see
(Cambridge University Press, 2014), at pp. 108-110.
Brittle (above n. 60) at p. 767.
73. An obvious example in this sense is that of political opinion: see
63. Committee on the Rights of the Child, General comment
UNHCR, Handbook on Procedures and Criteria for Determining
No. 6 (2005): Treatment of Unaccompanied and Separated
Refugee Status and Guidelines on International Protection
Children Outside their Country of Origin, 1 September 2005,
(reissued February 2019), https://www.unhcr.org/uk/publications/
CRC/GC/2005/6, available at: http://www.refworld.org/
legal/5ddfcdc47/handbook-procedures-criteria-determining-
docid/42dd174b4.html, paras 82-83. See also See UN
refugee-status-under-1951-convention.html, at p. 24, para. 80.
Committee on the Protection of the Rights of Migrant Workers and
However, it can be the case with the other grounds recognized in
UN Committee on the Rights of the Child, Joint General Comment
the Refugee Convention as well; see Hathaway and Foster (above
on State obligations regarding the human rights of children in the
n. 73), at pp. 394-395, 403, 409-410.
context of international migration in countries of origin, transit,
destination and return, 16 November 2017, CMW/C/GC/4 - 74. UNHCR Handbook on Procedures and Criteria for Determining
CRC/C/GC/23, para. 35. Refugee Status (above n. 74), p. 24, para. 80; UNHCR, Guidelines
on International Protection No. 1: Gender-Related Persecution
64. U N Committee on the Rights of the Child, General Comment No.
within the context of Article 1(A)(2) of the 1951 Convention and/
14 (2013) on the right of the child to have his or her best interests
or its 1967 Protocol relating to the Status of Refugees (2002),
taken as a primary consideration (art. 3, para. 1), 29 May 2013,
paras 22, 32-33; UNHCR, Guidelines on International Protection
CRC /C/GC/14, para. 59.
No. 6: Religion-Based Refugee Claims under Article 1(A)(2) of the
65. Ibid., para 60. See also YB and NS v Belgium, UN Committee 1951 Convention and/or the 1967 Protocol relating to the Status
on the Rights of the Child, 12/2017, 27 September 2018, paras of Refugees (2004), para 10; UNHCR, Guidelines on International
8.10-8.11. Protection No. 8: Child Asylum Claims under Article 1(A)(2) and
66. See, e.g., ExCom Conclusions 85 (XLIX) 1998, para k. The ExCom 1(F) of the 1951 Convention and/or 1967 Protocol relating to the
places great emphasis on the need for tracing procedures in order Status of Refugees (2009), paras 41-42, 46; UNHCR, Guidelines
to help children regain contact with their family members and on International Protection No. 12: Claims to Refugee Status
proceed with family reunification afterwards; see, e.g. ExCom, related to Situations of Armed Conflict and Violence under Article
Conclusions 24 (XXXII) 1981, para 7; ExCom, Conclusions 47 1(A)(2) of the 1951 Convention and/or 1967 Protocol relating to
(XXXVIII) 1987, para i; ExCom, Conclusions 74 (XLV) 1994, para the Status of Refugees and the regional refugee definitions (2016),
gg; ExCom, Conclusions 84 (XLVIII) 1997, para b(i); ExCom, para 33.
Conclusions 88 (L) 1999, para c; ExCom, Conclusions 107 (LVIII) 75. UNHCR, Procedural Standards for Refugee Status Determination
2007, para h(iii). (above n. 71), at p. 2.
67. UNHCR Guidance on Reunification of Refugee Families (July 76. ExCom, Family Protection Issues (above n. 71), paras 10, 27(d). At
1983), para. 5(iii). the EU level, this concept is also reaffirmed in the EU Directive on
68. Mubilanzila Mayeka and Kaniki Mitunga v. Belgium (App. No. Qualifications (recast), which recognizes that: “Family members,
13178/03), ECtHR, 12 October 2006, para 85. merely due to their relation to the refugee, will normally be
69. Mugenzi v. France (above n. 35), para. 45; Tanda-Muzinga v. vulnerable to acts of persecution in such a manner that could be
France (above n. 34), para. 67. the basis for refugee status”; see Directive 2011/95/EU, Preamble,
70. UNHCR, Procedural Standards for Refugee Status Determination para. 36.
under UNHCR’s Mandate (2016), Unit 5 “Processing Claims 77. UNHCR, Guidelines on International Protection No. 2:
Based on the Right to Family Unity”, para. 5.2.1. Although the “Membership of a particular social group” within the context of
specific paragraph refers to family members accompanying the Article 1(A)(2) of the 1951 Convention and/or its 1967 Protocol
refugee (thus outside of their country of origin), the same reasoning relating to the Status of Refugees (2002), https://www.unhcr.org/
is indeed applicable to family members left behind in the country publications/legal/3d58de2da/guidelines-international-protection-
of origin, who are continuing to endure those threats. See also K. 2-membership-particular-social-group.html, paras 1, 6-7;
Dixon-Fyle, “Putting the Family First”, 95 Refugees (1994), https:// Hathaway and Foster (above n. 73), at pp. 445-446.
www.unhcr.org/publications/refugeemag/3b5309ba4/refugees- 78. See Hathaway and Foster, The Law of Refugee Status (above
magazine-issue-95-international-year-family-family-first.html; n. 73), at pp. 446-448; M. Foster, The ‘Ground with the Least
and UNHCR, “Year of the Family”, 95 Refugees (1994), https:// Clarity’: A Comparative Study of Jurisprudential Developments
www.unhcr.org/publications/refugeemag/3b53087a4/refugees- relating to ‘Membership of a Particular Social Group’, UNHCR
magazine-issue-95-international-year-family-year-family.html. The Legal and Protection Policy Research Series PPLA/2012/02,
ExCom has repeatedly stressed the importance of recognising August 2012, at pp. 54-55.
that the family members of refugees are often themselves in 79. See EDAL, Denmark - The Refugee Appeals Board’s decision of
need of international protection; see, e.g., ExCom Conclusions 10 May 2017, https://www.asylumlawdatabase.eu/en/case-law/
24 (XXXII) 1981, para 8; ExCom Conclusions 47 (XXXVIII) 1987, denmark-refugee-appeals-board%E2%80%99s-decision-10-
para h; ExCom Conclusions 88 (L) 1999, para b(iii). The ExCom may-2017#content.
also emphasised that once the family members are reunited
80. Secretary of State for the Home Department v. K [2006] UKHL 46
with their sponsor in the country of asylum, in addition to being
(18 October 2006), para. 45. See also Foster, The ‘Ground with
given “derivative status” in line with their sponsor, they should be
the Least Clarity’ (above n. 79), at 56-57.
given the possibility to apply for asylum and obtain international
 Refugee Family Reunification in the UK: Challenges and Prospects | 96

81. U NHCR Guidelines on International Protection No. 12 (above n. 352FG(i). Under para. 352FA(i), beneficiaries of humanitarian
75), paras 10, 12, 17, 21-22, 33-39. protection can only act as sponsors if they were granted
82. See R. Mandal, Protection Mechanisms Outside of the 1951 this status on or after 30 August 2005. For beneficiaries
Convention (“Complementary Protection”) (2005), UNHCR Legal of humanitarian protection who were recognised as such
and Policy Research Series PPLA/2002/02, available at https:// before 30 August 2005, access to family reunification can
www.refworld.org/docid/435e198d4.html; H. Battjes, “Subsidiary only be obtained through the normal Immigration Rules;
Protection and Other Alternative Forms of Protection”, in V. Chetail see C. Yeo, “Refugee Family Reunion: a user’s guide”, Free
and C. Bauloz (eds), Research Handbook on International Law Movement, 20 March 2019, at www.freemovement.org.uk/
and Migration (Edward Elgar, 2014), at p. 541. refugee-family-reunion-a-users-guide/#Children_of_a_refugee.
83. Directive 95/2011/EU (recast), Arts 2(f), 15(c). Although the UK had 97. Some of the caseworkers interviewed have noticed that in
opted out of this Directive, prior to leaving the EU on 30 December practice, however, with regard to resettled refugees acting as
2020, it was still bound by the previous version (Directive sponsors, RFR can prove extremely difficult to obtain. One of
2004/83/EC), which was in similar terms. The relevant norms for the caseworkers interviewed noted that “this is particularly the
determining eligibility for humanitarian protection (i.e. the equivalent case as the Home Office usually requests that sponsors justify
of subsidiary protection) have been transposed into UK law under the reasons why their family members were not included in the
Part 11 of the Immigration Rules (see Articles 339C-339CA). original resettlement application. While sponsors would often say
that they were advised in this sense by UNHCR staff on grounds
84. CJEU, Case C-465/07, Elgafaji v Staatssecretaris van Justitie, 17
that they could apply for RFR once in the UK, the UNHCR deny
February 2009, para. 35.
this. Clearly, this not just creates a complicated situation for the
85. See also Not So Straightforward (above n. 3), pp. 26-30. outcome of RFR applications themselves – it also undermines the
86. See G.S. Goodwin-Gill and J. McAdam, The Refugee in credibility of sponsors”.
International Law (Oxford University Press, 2007), at p. 63. 98. Immigration Rules, Part 11, paras 352A(i) and 352FA(i); and
87. See Nicholson, “Essential Right” to Family Unity (above n. 24), at Home Office Guidance, Family Reunion: for refugees and those
pp. 213-214. with humanitarian protection, published 5 July 2011 (v. 5.0, last
88. UNHCR, Family Reunion in the United Kingdom (above n. updated 31 December 2020), available at https://www.gov.uk/
4), at pp. 3-4, 7. See also UN GA, Resolution A/RES/71/1 (3 government/publications/family-reunion-instruction (hereinafter
October 2016), https://www.un.org/en/development/desa/ “RFR Guidance”), p. 14.
population/migration/generalassembly/docs/globalcompact/A_ 99. Ibid., p. 15.
RES_71_1.pdf, para 79; UNHCR, Global Consultations on 100. The relevant part of the RFR Guidance (ibid.) reads: “a minor
International Protection. Summary conclusions: family unity (under 18 years of age) with leave in any category, including
(8-9 November 2001), https://www.unhcr.org/419dbfaf4.pdf, refugee status – if a minor holds refugee status, they cannot
para 6; UNHCR, Desperate Journeys: Refugees and Migrants sponsor relatives under the rules (even parents)”.
entering and crossing Europe via the Mediterranean and Western
101. The sponsor and their partner must not be “within the prohibited
Balkans Routes (August 2017), https://www.refworld.org/
degree of relationship”, i.e. consanguineous (Immigration Rules,
docid/59ad23046.html, at p. 15.
Part 11, paras 352A(vi) and 352FA(vi)). Under para. 352AA,
89. At the time of writing, the UK operates four resettlement unmarried or same-sex partners could only apply for RFR if
programmes, namely the Gateway Programme, the Mandate their sponsor had been granted refugee status or international
Refugee Programme, the (Syrian) Vulnerable Persons protection on or after 9 October 2006; this requirement has now
Resettlement Scheme (VPRS) and the Vulnerable Children’s been cancelled (see House of Commons, Statement of Changes
Resettlement Scheme (VCRS). See https://assets.publishing. in Immigration Rules (HC 667) 3 November 2016, available at
service.gov.uk/government/uploads/system/uploads/attachment_ assets.publishing.service.gov.uk/government/uploads/system/
data/file/730643/Resettlement_Policy_document_.pdf. uploads/attachment_data/file/564933/57079_-_HC_667_-_Web_
90. For discussion, see M. Gower, Brexit: the end of the Dublin Accessible.pdf, para 11.144).
III Regulation in the UK, Briefing Paper 9031, 21 December 102. Immigration Rules, Part 11, paras 352D and 352FG.
2020, https://commonslibrary.parliament.uk/research-briefings/
103. Immigration Rules, Part 11, paras 352A, 352FA. In addition to this,
cbp-9031.
as per para. 352A(iv) the applicant sponsored by a refugee must
91. Regulation (EU) No 604/2013 of the European Parliament and not fall under the exclusion conditions set out in para. 334(iii) or
of the Council of 26 June 2013 establishing the criteria and (iv) and art. 1(F) of the Refugee Convention; whilst an applicant
mechanisms for determining the Member State responsible for sponsored by a beneficiary of humanitarian protection must not
examining an application for international protection lodged in one fall under the exclusion conditions set out in para. 339D (para.
of the Member States by a third-country national or a stateless 352FA(iv)).
person, 23 April 2013, available at https://eur-lex.europa.eu/
104. Immigration Rules, Part 11, para. 352A(iii), 352FA(iii).
legal-content/EN/TXT/PDF/?uri=CELEX:32013R0604&from=en.
105. Immigration Rules, Part 11, para. 352A(ii), 352FA(ii).
92. Within the EU legal system, the conditions for family reunification
of third-country nationals within the EU with their family members 106. RFR Guidance (above n. 99), p. 16.
are set out in Directive 2003/86/EC (“the Family Reunification 107. Immigration Rules, Part 11, para. 352D(ii-iii) and 352FG(ii-iii).
Directive”), which, inter alia, established for the first time the right of 108. See RFR Guidance (above n. 99), p. 17: “where a child reaches
refugees to family reunification in EU Law. The UK did not opt in to the age of 18 after such an application has been lodged, but
the Family Reunification Directive and therefore, even before Brexit, before it has been decided, the caseworker must consider the
was never bound by its provisions. applicant’s eligibility under paragraph 352D of the Immigration
93. Article 2(h), Dublin III Regulation. Rules as if the applicant was still under 18”.
94. Immigration statistics, Dublin Regulation, available at https://www. 109. Ibid., p. 17.
gov.uk/government/statistical-data-sets/asylum-and-resettlement- 110. Ibid., p. 20.
datasets (last visited 31 Jan 2021). The data concern applications 111. Immigration Rules, Part 11, paras 352D(iv), 352FG(iv). The RFR
submitted by minors (Arts 8(1-2)); family members of beneficiaries Guidance specifies that “a child conceived before the sponsor fled
of international protection (Art. 9); family members of applicants to seek asylum in the UK but born post-flight should be treated as
for international protection (Art. 10); and family procedures – i.e. part of the pre-flight family of the sponsor” (ibid., p. 18).
when several family members apply for international protection in
112. The RFR Guidance requires the sponsor to hold “an adoption
different Member States (Art. 11).
order […] granted either by the administrative authority in the third
95. See RFR Guidance (n. 99), pp. 25-26. country, or by a court which has the legal power to decide such
96. Immigration Rules, Part 11, paras 352A(i), 352D(i), 352FA(i), applications”. Such an order must be “recognised as valid for the
 Refugee Family Reunification in the UK: Challenges and Prospects | 97

purposes of UK law” (ibid., p. 17). 137. Part 8, para.309A.

113. Ibid., p. 19. The RFR Guidance expressly includes de facto 138. Part 8, para. 309A (a) and (b)(i). Para. 309A (b)(ii) further requires
adopted children among those who are not eligible for RFR (ibid., the sponsor and their partner to “have assumed the role of the
p. 18). child’s parents, since the beginning of the 18 month period, so
114. These situations are regulated by Part 8 of the Immigration Rules, that there has been a genuine transfer of parental responsibility”.
para. 319X; see ibid., p. 32. 139. RFR Guidance (above n. 99), p. 30-31. Para. 319X is still
115. Ibid., p. 19. applicable after 09/07/2012 as per para. A280(b).
116. Appendix FM, para. GEN.1.1 (emphasis added). 140. If the sponsor has ILR, para. 297 applies. In both cases, the child
must be a minor, unmarried and not leading an independent life
117. The relevant paragraphs were paragraphs 319L-319XB of Part 8,
(see paras 319X(iv-v) and 297(i)(f)(ii-iii)).
Immigration Rules.
141. Part 8, para. 319X(ii).
118. The interplay between Part 8 and Appendix FM of the Immigration
Rules is regulated by paras A280-A280B of Part 8. 142. Part 8, para. 319X(iv-vii).
119. Paragraph A280(b), Immigration Rules. 143. Appendix FM, paras E-ECDR.2.3(a), (b).
120. As of January 2021, the fee for applications by dependent relatives 144. Ibid., para E-ECDR.2.1. In the case of parent and grandparent
of a refugee (“Settlement – refugee dependant relative”) is £388. applicants, they must not be in a subsisting relationship unless
This is considerably lower than the fee for dependent relatives their partner in such a relationship is also the sponsor’s parent or
of individuals with other immigration status (currently £3,250). grandparent and applying for Family reunification as well (ibid. para
See Home Office, Immigration and nationality fees: https://www. E-ECDR.2.2). Whilst Part 8 previously required the applicant to
gov.uk/government/publications/visa-regulations-revised-table/ be aged over 65 or under the age of 65 “in the most exceptional
home-office-immigration-and-nationality-fees-6-april-2020. compassionate circumstances” (para. 319V(i)), Appendix FM
does not set any age requirement in respect of the parent or
121. This applies both to applications under Part 8 and Appendix FM:
grandparent of the sponsor.
see Part 8, paras 281(i)(a)(ii-vi),(b)(ii), 295A(i)(a)(ii-vi),(b)(ii), 319L(i)(b),
319O(i)(b); Appendix FM, para E-ECP.4.1.1-E-ECP.4.2. 145. Ibid. paras E-ECDR.2.4, E.ECDR.2.5.
122. Both pre- and post-flight partners are in principle eligible to apply 146. Appendix FM, para. E-ECDR.3.1.
under this route, although clearly pre-flight partners should make 147. Ibid., para E-ECPT.2.2(c).
use of the RFR route under Part 11. The previous rules under 148. Appendix FM, paras E-ECP.3.1-E-ECP.3.4.
Part 8 were expressly stated to be applicable only to post-flight 149. Immigration Directorate Instruction, “Family Migration: Appendix
relationships. See Part 8 Immigration Rules Arts 319L(i)(a), 319O(i) FM Section 1.7A – Adequate Maintenance & Accommodation” (v.
(a). 7.0, January 2021), available at https://assets.publishing.service.
123. Appendix FM, para GEN.1.2. An “unmarried partner” is defined gov.uk/government/uploads/system/uploads/attachment_data/
for these purposes as “a person who has been living together with file/957484/adequate-maintenance-and-accommodation-
the applicant in a relationship akin to marriage or civil partnership appendix-fm-annex-1.7a-v7.0ext.pdf, p. 6.
for at least two years prior to the date of application”. 150. Ibid.,p. 22-23.
124. S ee Appendix FM, paras E-ECP.2.(1-6, 9-10). Paras 277-280 and
151. Ibid., p. 23.
295AA of Part 8 on the need for sponsor and applicant to be at
least 18 and not involved in a polygamous relationship are also still 152. MM (Lebanon) & Others v. Secretary for the Home Department
[2017] UKSC 10.
applicable by virtue of para. A280(a).
153. See Statement of Changes in Immigration Rules HC290, 20
125. See Appendix FM, paras E-ECP.3.1-E-ECP.3.4.
July 2017, https://assets.publishing.service.gov.uk/government/
126. Appendix FM, paras E-ECP.3.1-E-ECP.3.4. uploads/system/uploads/attachment_data/file/630926/60429_
127. U nder Part 8, the case of reunion between a post-flight child and HC_290_Accessible.pdf, p. 3. See further C. Desira, ‘Home
his or her parent in the UK used to be regulated in a relatively Office makes changes to Appendix FM Minimum Income Rule
straightforward manner by para. 319R, pursuant to which the following MM case’, Free Movement, 10 August 2017, at https://
parent needed to have refugee status or humanitarian protection www.freemovement.org.uk/home-office-makes-changes-
and prove he/she was able to provide adequate maintenance and appendix-fm-minimum-income-rule-following-mm-case/.
accommodation, whilst the child needed to be minor, dependent, 154. Ibid., para 7.2. The relevant sources are specified in para. 21A
and conceived post-flight. of Appendix FM-SE.
128. Part 8 Immigration Rules, para. 297 (ii-v). The usual requirements 155. RFR Guidance (n. 99), p. 20.
as to the child being a minor, unmarried and not leading an
156. Ibid., p. 20.
independent life apply. In addition, by virtue of para. A280(b),
section S-EC.1.9 of Appendix FM applies, providing that the 157. Ibid.
parent must not “pose a risk to the applicant” with respect to 158. Ibid., pp. 18-19.
specifically identified categories of convictions and offences. 159. RFR Guidance and that on Appendix FM refer caseworkers to
129. See further Appendix FM para EC-C.1.1-E-ECC.2.4. the Home Office Guidance on Family Policy – Family life (as a
130. See by virtue of paragraph A280(c). partner or parent), private life and exceptional circumstances, June
2020, available at https://www.gov.uk/government/publications/
131. Home Office, Statement of Intent: Family Migration, June 2012,
family-life-as-a-partner-or-parent-private-life-and-exceptional-
data.parliament.uk/DepositedPapers/Files/DEP2012-0920/
circumstance (hereinafter Guidance on Family Policy), p. 9.
StatementofIntent-FamilyMigration.pdf, p. 62.
160. Ibid., pp. 70-71.
132. A lthough there is no official indication in the Guidance in this
regard (in contrast to the situation in respect of de facto adopted 161. Under section 55 of the Borders, Citizenship and Immigration
children; see below, text accompanying n. 137), the practitioners Act 2009, caseworkers are expressly required to give “direct
interviewed indicated that this is the generally accepted approach effect”’ to the best interests of the child principle when deciding
in this type of case. on immigration matters concerning children. See also Guidance
on Family Policy (above n. 160), p. 66; R (Agyarko) v Secretary of
133. One or both parents must be present and settled in the UK or
State for the Home Department; R. (Ikuga) v. Secretary of State for
being admitted for settlement in the UK on the same occasion as
the Home Department [2017] UKSC 11.
the child, or one of them must be present and settled or is being
admitted on the same occasion and has the sole responsibility for 162. Guidance on Family Policy (above n. 160), pp. 72-75.
the child’s upbringing; Part 8, para. 310(i). 163. See Home Office, Statement of Intent: Family Migration (June
134. Part 8, para. 310(ii–iv). 2012), https://assets.publishing.service.gov.uk/government/
uploads/system/uploads/attachment_data/file/257359/soi-fam-
135. Part 8, para. 310(vii)(a).
mig.pdf, paras 7, 28-31.
136. RFR Guidance (above n. 99), p. 31.
 Refugee Family Reunification in the UK: Challenges and Prospects | 98

164. S ee also above “Financial and accommodation requirements 182. AT and Another v. Secretary of State for the Home Department
under Appendix FM: A closer look”. [2016] UKUT 227 (IAC), paras 25-26, 37-39, 43.
165. Guidance on Family Policy (above n. 160), p. 67. Cf. “could” in 183. KF and Others v. Secretary of State for the Home Department
para GEN.3.1.(1)(b) with “would” in para. GEN.3.2.(2): in the first [2019] UKUT 413 (IAC).
case, the mere possibility allows for a more flexible approach 184. AT and Another (above n. 183), para 43.
in assessing whether the financial requirements are met; in 185. KF and Others (above n. 184), paras 14, 17.
the second case instead, since the consequences of refusal
186. Ibid., para 15.
are certain, family reunification must be allowed with no need
to further examine financial or accommodation requirements 187. Home Office, Every Child Matters. Change for Children
(see further Home Office, Family Policy Family life (as a partner (above n. 180), para. 2.32.
or parent), private life and exceptional circumstances Version 188. KF and Others (above n. 184), paras 9, 19(b).
13.0 (28 January 2021), https://assets.publishing.service.gov. 189. Ibid., para. 20(g).
uk/government/uploads/system/uploads/attachment_data/ 190. Ibid.
file/957302/family-life-_as-a-partner-or-parent_-private-life-and-
191. A. Harvey, “Upper Tribunal grants refugee family reunion outside
exceptional-circs-v13.0-ext.pdf, at 71-72).
the Immigration Rules”, Free Movement, 3 March 2020, available
166. The Guidance provides the example of an applicant who has at https://www.freemovement.org.uk/upper-tribunal-grants-
suffered a bereavement and may need to stay in the UK for some refugee-family-reunion-outside-the-immigration-rules/.
time to organise a funeral and/or “deal with their loss”; see ibid.,
192. Ibid.
p. 83.
193. KF and Others (above n. 184), para. 18(d).
167. Interview with supervisor, University law clinic, 5 May 2019.
194. On this point, see further Harvey (above n. 192).
168. Interview with caseworker, Refugee support charity 2 July 2019,
Interview with sponsor. 195. Home Office, Response to the Independent Chief Inspector of
Borders and Immigration’s report: An inspection of family reunion
169. See ICIBI RFR Report 2020 (above n. 5), p. 30, para. 6.39.
applications June–December 2019, 8 October 2020, https://www.
170. Ibid. gov.uk/government/publications/response-to-the-report-on-an-
171. UNHCR, Family Reunion in the United Kingdom (above n. 4), p. 4. inspection-of-family-reunion-applications (“Home Office Response
172. UNHCR, Protecting the Family: Challenges in Implementing to ICIBI Report 2020”), p. 4, paras 4.3-4.4.
Policy in the Resettlement Context, June 2001, available at www. 196. Parliamentary Question, subject: anchor children,
refworld.org/docid/4ae9aca12.html , para. 1(c). 13 February 2012, available at: http://www.europarl.
173. Refugees (Family Reunion) (No. 2) Bill (HC Bill 13) (sponsor Angus europa.eu/sides/getDoc.do?pubRef=-//EP//
Brendan McNeil MP), available at https://services.parliament. TEXT+WQ+E-2012-001344+0+DOC+XML+V0//
uk/Bills/2017-19/refugeesfamilyreunionno2.html (14 July 2017) EN&language=GA.
(McNeill Bill); a parallel Bill had been introduced in the House of 197. See European Migration Network, ‘Ad-Hoc Query on
Lords by Baroness Hamwee in 2017 (Refugees (Family Reunion) Unaccompanied asylum-seeking children followed by family
Bill [HL] 2017-19 (27 June 2017), at https://services.parliament. members under Dublin Regulation, requested by A. Lainé’, 8
uk/bills/2017-19/refugeesfamilyreunionbill.html (Hamwee Bill). The June 2017, available at https://ec.europa.eu/home-affairs/sites/
Bills aimed at bringing refugee family reunion back into scope of homeaffairs/files/2017.1199_be_unaccompanied_asylum_wider_
legal aid, allowing minors to act as sponsors, and expanding the dissemination.pdf. As to the debate in Eurepean States, see e.g.,
categories of eligible family members. G. Woessner, “Le regroupement familial va-t-il passer aux frères et
174. See Refugees (Family Reunion) Bill [HL] (HL Bill 15) (sponsor sœurs pour les mineurs isolés?”, Europe 1, 6 April 2018, available
Baroness Hamwee), at https://services.parliament.uk/ at: https://www.europe1.fr/emissions/Le-vrai-faux-de-l-info2/
bills/2019-21/refugeesfamilyreunion.html. The bill had its first le-regroupement-familial-va-t-il-passer-aux-freres-et-soeurs-pour-
reading on 9 January 2020; as at the time of finalisation of les-mineurs-isoles-3619346; “Regroupement familial: les mineurs
this report in February 2021, a second reading was yet to be pourront-ils faire venir leurs frères et sœurs?”, 20 Minutes, 19 April
scheduled. 2018, available at https://www.20minutes.fr/politique/2257887-
175. In order to be eligible, the adult child must also have been under 20180419-regroupement-familial-mineurs-isoles-pourront-faire-
the age of 18 or unmarried at the time the sponsor left the country venir-freres-urs.
of their habitual residence in order to seek asylum. 198. House of Lords, European Union Committee, “Children in crisis:
176. McNeil Bill, section 1(4)(e). unaccompanied migrant children in the European Union”, 26 July
2016, available at https://publications.parliament.uk/pa/ld201617/
177. See above, section 2.4.
ldselect/ldeucom/34/34.pdf, paras 59-62. See also the doubts
178. House of Commons, Home Affairs Committee, The work of the expressed by the Immigration and Appeals Chamber of the Upper
Immigration Directorates (Q1 2016), 27 July 2016, HC 151 2016- Tribunal in respect of the evidence put forward by the Government
17, available at https://publications.parliament.uk/pa/cm201617/ in an attempt to substantiate the existence of the anchor child
cmselect/cmhaff/151/151.pdf, p. 20, para. 41. phenomenon in AT and another, (above n. 183),para. 42
179. Home Office, Every Child Matters. Change for Children 199. See UNHCR, “Destination Anywhere” (June 2019), available at
(November 2009), available at https://assets.publishing.service. https://www.unhcr.org/uk/5daf2cef4, at p. 23.
gov.uk/government/uploads/system/uploads/attachment_data/
200. Ibid., p. 31, para. 3.6.
file/257876/change-for-children.pdf, para 2.7. Until 2008, the UK
government had a reservation to exclude the application of the 201. Ibid., p. 44.
Convention on the Rights of the Child in immigration matters. For 202. Home Office Response to ICIBI Report 2020 (above n. 196),
commentary, see Brittle, “A Hostile Environment for Children” p. 4 paras 4.3-4.4.
(above n. 60), at p. 771. 203. States which only allow family reunification with parents are
180. ZH (Tanzania) v. Secretary of State for the Home Department Austria, Belgium, Croatia, Cyprus, France, Greece, Hungary,
[2011] UKSC 4, para 33. Ireland, Italy, Lithuania, the Netherlands, Norway, Poland (parents
181. Zoumbas v. Secretary of State for the Home Department [2013] or grandparents), Portugal, Romania, Slovakia, Slovenia and
UKSC 74 (27 November 2013), para. 10. A such, in order to Sweden. Other adult legal guardians can apply in Bulgaria, Czech
determine the proportionality of an interference with Article 8 Republic, Estonia, Finland, Germany, Latvia, Luxemburg, Malta
rights, a thorough examination of the child’s situation must be and Spain. In Denmark, which is not bound by Directive 2006/83,
conducted, so as to analyse all factors contributing to their best parents can be reunited with their unmarried minor children
interests (ibid.). only if denying family reunification would constitute a breach of
 Refugee Family Reunification in the UK: Challenges and Prospects | 99

Denmark’s international obligations (https://www.nyidanmark.dk/ 223. Ibid., pp. 176-177, para. 11.48.
en-GB/You-want-to-apply/Family/Family-reunification/Parent-or- 224. Ibid., p. 176, paras. 11.45-11.47.
sibling-of-an-unaccompanied-minor-in-Denmark). . 225. Concerns relating to the consistent “upselling” of services by
204. Art. 10(3)(a), Family Reunification Directive (above n. 93). commercial partners have also been expressed by the ICIBI;
205. See ibid., Art. 10(1). see Report on Network Consolidation 2020 (below n. 252),
206. See ibid., Art. 10(3)(b). p. 9, para. 3.20.
207. Art. 10, Family Reunification Directive (above n. 93). 226. Law Commission, Simplification Report (above n. 213), pp. 173-
175, paras. 11.34-11.39.
208. Czech Republic, Denmark, Finland, France, Germany, Hungary,
Ireland, the Netherlands, Norway, Portugal. 227. RFR Guidance (above n. 99), p. 22.
209. International Protection Act 2015, section 56 (9)(b) and (c). 228. Ibid.
210. Danish Immigration Service, New to Denmark, https://www. 229. See Norwegian Refugee Council/Internal Displacement Monitoring
nyidanmark.dk/en-GB/You-want-to-apply/Family/Family- Centre (NRC/IDMC), “Understanding statelessness in the Syria
reunification/Parent-or-sibling-of-an-unaccompanied-minor-in- refugee context” (2016), available at https://www.refworld.org/
Denmark, last updated 18 June 2019). docid/584011494.html [Stateless persons who lived in Syria
before the conflict may have held different documents to those
211. See S.A. Motz, Family Reunification for Refugees in Switzerland:
possessed by nationals. They would not, for example, possess a
Legal Framework and Strategic Considerations (Centre
hawiya [state issued identity card], which is reserved for nationals.
Suisse pour la Défense des Droits des Migrants, 2017),
In many cases stateless Kurds – Maktoum in particular – do
available at https://www.unhcr.org/dach/wp-content/uploads/
not have any documents. Palestinians in Syria are issued other
sites/27/2017/11/201710-CSDM-UNHCR-FamReun-for-
documents, including a Palestinian travel document: a document
Refugees-in-Switzerland.pdf.
issued by the Syrian authorities to Palestinians who habitually
212. Law Commission, Simplification of the Immigration Rules: Report, reside on the territory, in lieu of a national passport, but not
13 January 2020, available at https://www.lawcom.gov.uk/project/ denoting nationality.]
simplifying-the-immigration-rules (hereinafter Law Commission,
230. See Refugees International, South Sudan Nationality: Commitment
Simplification Report, p. 1, para. 1.1. The report explores a broad
Now Avoids Conflict Later (May 2012), available at https://www.
range of issues, including the evidentiary burden and eligibility
refworld.org/docid/4fc8605a2.html.
criteria, as well as the on-line application process and ensuring
that there is consistency between the application process, the 231. For instance, the Country of Origin Information Report on
rules and the guidance. Afghanistan quotes a 2011 report of the UN High Commissioner
for Human Rights noting that the majority of children remain
213. Home Office, “Simplifying the Immigration Rules: A Response”,
unregistered and that children born out of wedlock may
20 March 2020, available at https://assets.publishing.service.
be deprived of their right to birth registration. See United
gov.uk/government/uploads/system/uploads/attachment_data/
Kingdom: Home Office, Country of Origin Information Report –
file/875205/24-03-2020_-_Response_to_Law_Commission_
Afghanistan, 8 May 2013, available at: https://www.refworld.org/
for_publication.pdf (hereinafter “Home Office Response to
docid/512de6902.html.
Simplification Report”), p. 10.
232. The most recent ICIBI report found that documents from some
214. Home Office Response to Simplification Report (above n. 214).
countries (in particular from Sudan and Eritrea) were more routinely
215. UNHCR, Family Reunion in the United Kingdom (above n. 4), p. 6. doubted and disregarded as evidence, and that this was much
216. https://www.visa4uk.fco.gov.uk/home/welcome more the case in cases assessed by the ECOs in Pretoria than by
217. Interview with supervisor, University law clinic, 11 May 2019. the team in Sheffield. See ICIBI RFR Report 2020 (above n. 5), p.
218. With regard to the lack of a dedicated form for RFR applications 49, para. 9.12.
on the old online application system, see also UNHCR, Family 233. See also ICBI RFR Report 2016 (above n. 5), p. 5, noting that in
Reunion in the United Kingdom (above n. 4), p. 3. some of the sampled cases the applications of children had been
219. For example, one of the sponsors interviewed had been making refused because they had failed to provide adequate evidence of
an application on behalf of his daughter. One question asked their ongoing relationship.
with whom the applicant would be staying when she came to the 234. See Home Office, DNA Policy Guidance, March 2020 (v. 4.0),
UK. There was no option on the drop-down menu for “father” or available at https://assets.publishing.service.gov.uk/government/
“parent”, so the sponsor selected the option “other” and explained uploads/system/uploads/attachment_data/file/873640/dna-
in the notes section of the online application why he had done this. v4.0ext1.pdf, p. 4. The relevant paragraph was added in October
The application was rejected on the basis that the it had not been 2018 to clarify the position following the emergence of evidence
proven to the ECO’s satisfaction that the sponsor was the father that the Home Office mandating DNA evidence in certain
of the girl, partly because he had ticked “other” on the drop-down circumstances concerning specific categories of individuals
menu. The case was overturned on appeal with DNA evidence. making immigration applications; for the background, see D.
220. See J. Kingham, “‘Computer says no’: Facing up to the full Singh, Independent Review of the Home Office response to the
implications of a digitised immigration system”, Freemovement, mandating of DNA evidence for immigration purposes, 10 June
8 January 2019, at https://www.freemovement.org.uk/ 2019, available at https://www.gov.uk/government/publications/
computer-says-no-digitised-immigration-system/. use-of-dna-evidence-in-immigration-applications.
221. “The new website is really difficult to find – and there is nothing 235. ICIBI RFR Report 2016 (above n. 5), para. 2.7.
to direct you there. You go onto the old website and you can 236. For instance, the BRC has an agreement with a DNA test
fill in the entire form until you get to the bit where you make an provider whereby they are able to get a 40% discount in testing
appointment and there are no appointments! And on the new for their clients.
website it’s really difficult to find, then there is quite a bit problem 237. Home Office Response to ICIBI Report 2020 (above n. 196),
with the bit where you book an appointment because the first para 4.7.
tab is for priority appointments which you have to pay for, and 238. Home Office, DNA Policy Guidance (above n. 235), p. 13.
you have to know that as a refugee you go for the standard
239. For instance, staff at the BRC Family Reunion Project have
appointment which is on another tab, but the actual system itself
reported particular difficulties for applicants from Eritrea, who
is really simple, and doesn’t ask for endless information over and
often only have baptismal documents to prove their identity. As
over again. I think if they can sort out some of the problems it will
a consequence, the Project has had to ask individuals to register
be much more accessible.” (Interview with Operations Manager
with UNHCR in order to obtain photographic identity documents,
A, BRC RFR Project, 27 July 2019)
a time-consuming and stressful process: Interview with Policy
222. Law Commission, Simplification Report (above n. 213), p. 173, Officer, Families Together Partnership, 19 June 2020.
para. 11.32.
 Refugee Family Reunification in the UK: Challenges and Prospects | 100

240. ICIBI RFR Report 2016 (above n. 5), p. 17, para. 2.14. Movement, 2 May 2019.
241. Ibid., p. 12, para. 2.16. The ICIBI noted that none of the 181 259. Written comments, Clinic Supervisor, 3 March 2020. ICIBI RFR
cases sampled during the inspection had been referred to Report 2020 (above n. 5), p. 74, section 11.36.
the Referred Casework Unit, despite some appearing to merit 260. British Red Cross, The Long Road to Reunion: Making Refugee
consideration. Of particular concern was the fact that the Family Reunion Safer (2020), available at https://www.redcross.
treatment of married women under the age of 18 appeared to org.uk/-/media/documents/about-us/research-publications/
take no account of the existence of “compassionate factors”. In refugee-support/the-long-road-to-reunion.pdf.
this regard, the inspection highlighted a particularly egregious 261. ICIBI RFR Report 2020 (above n. 5), p. 8, para. 3.17.
case where the wife, aged 16, with two very young children, was
262. Home Office Response to ICIBI Report 2020 (above n. 196),
about to be left in Syria without family support.
paras 5.2-5.3.
She was refused leave twice, without reference to the RCU, as the
Immigration Rules require both the applicant and UK sponsor to 263. ICIBI RFR Report 2020 (above n. 5), p. 45, para. 8.21.
be aged 18 at the time of the application. 264. Ibid., p. 7, para. 3.1.
242. Ibid., (above n. 5), p. 9, recommendation 5. 265. Written comments, Immigration Clinic Supervisor,
243. See RFR Guidance (n. 99), pp. 20-21 (“Exceptional circumstances 3 September 2020.
and compassionate factors”). 266. See ICIBI RFR Report 2020 (above n. 5), p. 54, para. 9.32.
244. See ICIBI RFR Re-inspection Report 2018 (above n. 5), p. 9, 267. See RFR Re-inspection Report 2018 (above n. 5), p. 36,
para. 3.10 and p. 28, para. 4.34; ICIBI RFR Re-inspection Report recommendation 3; ICIBI RFR Report 2020 (above n. 5), p. 10,
(Istanbul) 2017 (above n. 5), p. 11, para. 4.34. para. 4.3.
245. See ICIBI RFR Re-inspection Report 2018 (above n. 5), 268. ICIBI RFR Report 2020 (above n. 5), p. 10, para. 4.3. The Home
p. 9, para. 3.10. Office has accepted this recommendation and responded that,
246. ICIBI RFR Report 2020 (above n. 5), p. 26. once the move to Sheffield has been completed, “the suite of
management reports will provide a complete and comprehensive
247. ibid., p. 28, para. 6.30.
overview of all family reunion applications and related supporting
248. Ibid. processes”; see Home Office Response to ICIBI Report 2020
249. Comment from Immigration Clinic Supervisor, 3 September 2020. (above n. 196), p. 3, para. 3.2.
Others have noted that the length of the decision-making implies 269. The ICIBI recommended that Home Office caseworkers record
that “the pressure is on [caseworkers] as the sponsor is constantly relevant family details during the substantive asylum interview of
asking and there is nothing I can do” [interview with GMIAU prospective sponsors and that these details should be made easily
Director, 20 February 2019]. available to the decision makers in the family reunification process;
250. Many of the recommendations in the ICIBI’s initial report on RFR see ICIBI RFR Report 2016 (above n. 5), p. 6, Recommendation 1.
of 2016 were directed at the decision-making process in use by 270. Home Office, Guidance for Substantive Asylum Interviews, 5
ECOs, including the fact that they did not give full consideration to June 2019, available at https://assets.publishing.service.gov.
evidence, failures to retain evidence in cases of refusal, and poorly uk/government/uploads/system/uploads/attachment_data/
motivated refusal notices; see ICIBI RFR Report 2016 (above n. 5), file/807031/asylum-interviews-v7.0ext.pdf, p. 22.
p. 17, paras 2.10 and 2.14. Most of those issues were highlighted
271. Ibid., p. 22.
as remaining unresolved in the re-inspection report in 2018; see
ICIBI RFR Re-inspection Report 2018 (above n. 5), p. 5, para. 3.9. 272. ICIBI RFR Re-inspection Report 2018 (above n. 5), p. 20, para.
4.6.
251. The network consolidation programme has so far resulted in the
closure of over 100 overseas DMCs and the establishment of two 273. See, e.g., GMIAU, Briefing paper (above n. 3).
DMCs in the UK, in Croydon and Sheffield. For discussion, see 274. Ibid.
ICIBI, “An inspection of the Home Office’s Network Consolidation 275. Interview with Law Clinic Supervisor, 3 September 2020.
Programme and the ‘onshoring’ of visa processing and decision- 276. Preliminary Information Questionnaire, 27 May 2020,
making to the UK”, 6 February 2020, available at https://www. available at https://www.gov.uk/government/publications/
gov.uk/government/publications/an-inspection-of-the-home- preliminary-information-questionnaire-for-asylum-claims.
offices-network-consolidation-programme-and-the-onshoring-of-
277. The Home Office’s willingness to establish a constructive
visa-processing-and-decision-making-to-the-uk (hereinafter “ICIBI
relationship with key stakeholders is also evidenced by the setting
Report on Network Consolidation 2020”).
up of a sub-group on Family Reunion within the framework of the
252. The onshoring of RFR applications was presented by the Home National Asylum Stakeholder Forum (NASF) sub-group on Family
Office as the solution to several of the issues highlighted in the initial Reunion. The forum is co-chaired by the British Red Cross and
ICIBI’s report on the RFR process; see Home Office Response the Home Office and enables stakeholders to meet on a quarterly
to the Independent Chief Inspector’s report: ‘An Inspection of basis to discuss issues relating to process and decision-making.
Family Reunion Applications’ January – May 2016 (September
278. ICIBI, “An Inspection of Asylum Intake and Casework”, 28
2016), available at https://www.gov.uk/government/publications/
November 2017, available at https://assets.publishing.service.
home-office-response-to-the-report-an-inspection-of-family-
gov.uk/government/uploads/system/uploads/attachment_data/
reunion-applications-january-to-may-2016 (hereinafter “Home Office
file/662769/An_Inspection_of_Asylum_intake_and_casework.pdf
response to ICIBI Report 2016”).
(hereinafter “ICIBI Asylum Casework Report 2017”).
253. The last group of applications to be “onshored” were those
279. The expression “hostile environment” is linked to a set of policies
from Sudan, which until 1 January 2021 were processed at the
enacted in 2012 by the then Home Secretary Theresa May with
overseas DMC in Pretoria; see ICIBI RFR Report 2020 (above n.
the stated aim to make life “as difficult as possible for illegal
5), p. 15, section 5.18.
migrants”; see J. Kirkup and R. Winnett, “Theresa May interview:
254. Ibid., p. 44, para. 8.11. ‘We’re going to give illegal migrants a really hostile reception”, The
255. See, e.g., ICIBI RFR Report 2016 (above n. 5), pp. 20-21. Interview Telegraph, 25 May 2012. Those policies included restrictions on
with ICIBI, 24 July 2019. See also GMIAU, Briefing paper (above n. the ability to rent accommodation, hold a bank account, and gain
3). access to medical care and benefits.
256. See ICIBI Report on Network Consolidation 2020 (above n. 252), 280. See, e.g., House of Lords, European Union Committee,
p. 9, para. 3.2.3, suggesting that the Home Office needs to do “Children in crisis: Unaccompanied migrant children in the EU”,
more to evidence that the programme not only saves it money, but HL Paper 34, 26 June 2016, available at https://publications.
also ease of access and use by applicants, accuracy and fairness. parliament.uk/pa/ld201617/ldselect/ldeucom/34/34.pdf, which
257. https://www.gov.uk/find-a-visa-application-centre identifies the “culture of suspicion and disbelief” as one of the
258. D. Stevenson, “The Absolute State of the Visa System”, Free four main problems underlying the practical difficulties that face
 Refugee Family Reunification in the UK: Challenges and Prospects | 101

unaccompanied migrant children. See also UNHCR, “Beyond 296. IAA 1999, Part V.
Proof. Credibility Assessment in EU Asylum Systems”, May 2013, 297. IAA 1999, s. 82. Immigration services are defined as “the making
at https://www.unhcr.org/uk/protection/operations/51a8a08a9/ of representations, in connection with one or more relevant
full-report-beyond-proof-credibility-assessment-eu-asylum- matters, on behalf of a particular individual either in: (a) civil
systems.html, p. 13. Freedom from Torture, Beyond Belief: How proceedings before a court, tribunal or adjudicator in the United
the Home Office fails survivors of torture at the asylum interview, Kingdom,
26 June 2020, available at https://freedomfromtorturestories. or (b) in correspondence with a Minister of the Crown or
contentfiles.net/media/documents/Beyond_Belief_report.pdf government department”.
281. Freedom from Torture, Lessons Not Learned: The failure of asylum 298. OISC, “How to become a regulated immigration adviser”,
decision-making in the UK, September 2019, available at https:// April 2020 https://www.gov.uk/government/publications/
www.freedomfromtorture.org/sites/default/files/2019-09/FFT_ how-to-become-a-regulated-immigration-adviser/
LessonsNotLearned_Report_A4_FINAL_LOWRES_0.pdf, p. 4 how-to-become-a-regulated-immigration-adviser.
282. Windrush: Lessons Learned Review. Independent review by 299. OISC, “OISC regulation and solicitors”, updated 26 November
Wendy Williams, HC 93 (March 2020), available at https://www. 2019, available at https://www.gov.uk/governm ent/publications/
gov.uk/government/publications/windrush-lessons-learned-review. oisc-regulation-and-solicitors/oisc-regulation-and-solicitors.
283. Freedom from Torture, Lessons Not Learned (above n. 282), p. 11. 300. The Law Society, Immigration and Asylum law Accreditation,
284. See Windrush Lessons Learned Review (above n.283), September 2018, available at https://www.lawsociety.org.uk/
Recommendations 14 and 15. support-services/accreditation/immigration-asylum/.
285. Home Office, Response to the Windrush Lessons Learned 301. OISC, “How to become a regulated immigration adviser”,
Review: A Comprehensive Improvement Plan, CP 293, April 2020, available at https://www.gov.uk/government/
September 2020, available at https://assets.publishing.service. publications/how-to-become-a-regulated-immigration-adviser/
gov.uk/government/uploads/system/uploads/attachment_data/ how-to-become-a-regulated-immigration-adviser.
file/922973/CCS001_CCS0820050750-001_Resp_to_Windrush_ 302. See however the recent guidance about the costs involved in
Lessons_CP_293_Accessible.pdf, para. 72. the family reunification process prepared by the charity Together
286. Ibid., para. 73. Now (available at http://togethernow.org.uk/wp-content/
287. Ibid., para. 88. uploads/2017/09/Together-Now-Costs-of-family-reunion-
guidance.pdf).
288. See https://www.gov.uk/settled-status-eu-citizens-families.
303. Holden, Cuts that Cost (above n. 3), p. 32.
289. “All of the Home Office staff involved appeared enthusiastic
about the Scheme. It was clear that a great deal of thought had 304. BRC, Long Road to Family Reunion (above n. 261).
gone into trying to ensure that the ‘customer experience’ was a 305. The validity period is currently extended to 90 days in light
positive one, not least the fact that Home Office staff assisting of the COVID-19 pandemic.
applicants all wore pastel polo shirts, which were smart, easily 306. See UNHCR, Family Reunion in the United Kingdom (above n. 4),
identifiable, and far-removed from the blue-black uniforms more p. 5.
often associated with immigration and borders functions”; ICIBI, 307. See Refugee Integration Loan, March 2015 available at: https://
“An inspection of the EU Settlement Scheme (April 2019 to www.gov.uk/refugee-integration-loan/what-youll-get.
August 2019)” (February 2020), available at https://www.gov.uk/
308. https://www.redcross.org.uk/get-help/get-help-as-a-refugee
government/publications/an-inspection-of-the-eu-settlement-
scheme-april-2019-to-august-2019, p. 10, para 5.17. 309. LASPO Review (above n. 8).
290. See ibid., p. 6, para. 3.9. 310. For an overview of the areas for which public funding for
representation and advice remains available after LASPO, see A.
291. See https://www.gov.uk/government/publications/
Harvey, “Legal Aid for Immigration Cases” (Legal Action Group,
syrian-vulnerable-person-resettlement-programme-fact-sheet.
June 2015), available at https://www.lag.org.uk/article/202755/
292. See Funding Instruction for local authorities in support legal-aid-for-immigration-cases.
of the United Kingdom’s Resettlement Programmes.
311. See LASPO, Part 1, Schedule 1, para. 30, which allows the
Financial Year 2018 - 2019, available at https://assets.
provision of civil legal services “in relation to rights to enter,
publishing.service.gov.uk/government/uploads/
and to remain in, the United Kingdom arising from the Refugee
system/uploads/attachment_data/file/722154/
Convention, Article 2 or 3 of the Human Rights Convention, the
Combined_local_authority_funding_instruction_2018-2019_v2.pdf
Temporary Protection Directive, and the Qualification Directive”.
293. See, e.g., ICIBI, “An Inspection of the Vulnerable
312. Ministry of Justice, Proposals for the Reform of Legal Aid in
Persons Resettlement Scheme” (May 2018), available
England and Wales, CP12/10, November 2010, p. 68, para 4.201.
at https://www.gov.uk/government/publications/
an-inspection-of-the-vulnerable-persons-resettlement-scheme. 313. Ibid., paras 4.202 and 4.201.
294. See Asylum and Resettlement Data, May 2020, 314. Ibid., para 4.202,
available at https://www.gov.uk/government/statistical-data- 315. BRC, Not So Straightforward (above n. 3); see also Refugee
sets/asylum-and-resettlement-datasets#asylum-applications- Action, Family Reunion Briefing Paper, available at https://
decisions-and-resettlement. www.refugee-action.org.uk/wp-content/uploads/2016/10/
295. “Relevant matters” under the Act are “(a) a claim for asylum; (b) briefing_-_refugee_family_reunion.pdf; GMIAU, Briefing paper
an application for, or for the variation of, entry clearance or leave (above n. 3). For a general assessment of the impact of cuts,
to enter or remain in the United Kingdom; (c) unlawful entry into see Amnesty International, Cuts that hurt: The impact of legal aid
the United Kingdom; (d) nationality and citizenship under the law cuts in England on access to justice, October 2016, https://www.
of the United Kingdom; (e) citizenship of the European Union; (f) amnesty.org.uk/files/aiuk_legal_aid_report.pdf.
admission to Member States under Community law; (g) residence 316. NACCOM and Refugee Action, “Tipping the Scales”, July 2018,
in a Member State in accordance with rights conferred by or available at https://www.refugee-action.org.uk/wp-content/
under Community law; (h) removal or deportation from the United uploads/2018/07/Access-to-Justice-July-18-1.pdf.
Kingdom; (i) an application for bail under the Immigration Acts or 317. J. Wilding, Droughts and Deserts. A report on the immigration
under the [1997 c. 68.] Special Immigration Appeals Commission legal aid market, June 2019, available at http://www.jowilding.org/
Act 1997; (j) an appeal against, or an application for judicial review assets/files/Droughts%20and%20Deserts%20final%20report.pdf
in relation to, any decision taken in connection with a matter 318. Ibid p. 9.
referred to in paragraphs (a) to (i)” (1999 IAA, s. 82(1)). See also
319. LASPO Review (above n. 8).
ILPA, The Regulation of Immigration Advice (June 2017), at www.
ilpa.data.resources.17.06.27-regulation-of-immigration-advice. 320. See, e.g., Rights of Women, “Submission to the Government
Post-Implementation Review of the Legal Aid, Sentencing
 Refugee Family Reunification in the UK: Challenges and Prospects | 102

and Punishment of Offenders Act 2012 (LASPO)”, September 330. ““Disbursements” means counsel’s fees, experts’ fees, court
2018, available at https://rightsofwomen.org.uk/wp-content/ fees, travelling and witness expenses and other out of pocket
uploads/2018/10/Submission-LASPO-PIR-final-Sept-2018.pdf; expenses properly incurred by a fee earner which would be
Coram Children’s Legal Centre, “Briefing for House of Commons properly chargeable to a client. Counsel’s fees are also treated as
Westminster Hall debate – Legal aid and the post-implementation disbursements for most purposes but are considered separately
review”, 4 September 2018, available at https://www. at section 13 of the Guidance. Disbursements are assessed
childrenslegalcentre.com/wp-content/uploa ds/2018/09/CCLC- on the basis of determining whether they were reasonably
briefing_legal-aid_August-2018.final_.pdf; “UNHCR Submission and proportionately incurred and are reasonable in amount
to the Post Implementation Review Evidence Gathering Exercise subject to any prior authority granted.” Legal Aid Agency, “Cost
of the Legal Aid, Sentencing and Punishment of Offenders Act Assessment”, April 2018, available at https://assets.publishing.
2012”, December 2018, available at https://www.unhcr.org/ service.gov.uk/government/uploads/system/uploads/attachment_
uk/5bb70cea4.pdf. data/file/737499/Costs_Assessment_Guidance_2018_-_
321. For an overview of the early reactions from the refugee sector, Version_1.pdf.
see Electronic Immigration Network (EIN), “Ministry of Justice 331. See UK Government, Civil Aid Remuneration Regulation, March
publishes long-awaited review into legal aid, proposes no 2013, available at http://www.legislation.gov.uk/uksi/2013/422/
significant changes for immigration”, 11 February 2019, available schedule/1/part/1/made, Table 4(a).
at https://www.ein.org.uk/news/ministry-justice-publishes-long- 332. It is possible to apply for the upper cost limit to be extended on
awaited-review-legal-aid-proposes-no-significant-changes. On a application of a CW3C form. https://assets.publishing.service.
marginally positive note, LASPO was amended in October 2019 gov.uk/government/uploads/system/uploads/attachment_data/
to bring all immigration matters for separated migrant children into file/470798/cw3c-checklist.pdf. See Guidance on supporting
the scope of general legal aid funding; see Legal Aid, Sentencing separated and unaccompanied children to access legal
and Punishment of Offenders Act 2012 (Legal Aid for Separated aid in immigration cases (July 2019), available at http://
Children) (Miscellaneous Amendments) Order 2019, S.I. No. refugeechildrensconsortium.org.uk/wp-content/uploads/2019/07/
1396, available at http://www.legislation.gov.uk/uksi/2019/1396/ NGO_briefing_Legal_Aid_provision_Nov19_FINAL.pdf.
contents/made; notably, the expansion of legal aid includes 333. All the fees and disbursement are current as of January 2021;
applications made by the child or another person for entry see the Civil Law Legal Aid Remuneration Tables, updated
clearance, or leave to enter and remain made outside the scope of 2013, available at: http://www.legislation.gov.uk/uksi/2013/422/
the Immigration Rules on the basis of exceptional circumstances schedules/made?view=plain.
or compassionate and compelling factors (see ibid., r. 2, inserting
334. See, amongst many others, the assessment of the new scheme
a new s. 31A in LASPO 2012. This change however occurred
principally as a result of a judicial review challenge brought by by the Bach Commission on Access to Justice, in its interim
the Children’s Society, rather than due to the LASPO Review; report “The crisis in the justice system in England & Wales”,
November 2016, available at https://fabians.org.uk/publication/
see Ministry of Justice, “Legal Support: The Way Ahead. An
the-crisis-in-the-justice-system-in-england-wales/. See also “The
action plan to deliver better support to people experiencing legal
Right to Justice. The Final Report of the Bach Commission”,
problems”, February 2019, available at https://www.gov.uk/
September 2017, available at http://www.fabians.org.uk/wp-
government/publications/legal-support-action-plan, p .4.
content/uploads/2017/09/Bach-Commission_Right-to-Justice-
322. Source: LASPO Review (above n. 8), p. 57. Report-WEB.pdf. See also https://sirhenrybrooke.me/2017/10/08/
323. Ibid. the-bach-report-13-exceptional-case-funding/.
324. S everal organisations raised this point in the context of the LASPO 335. Legal Aid Statistics to December 2019, available
post-implementation review, noting that “these costs have been at https://www.gov.uk/government/statistics/
shifted onto local authorities to an extent which may outweigh that legal-aid-statistics-quarterly-october-to-december-2019.
of the corresponding legal aid provision.” The review’s response 336. Gudanaviciene and ors v. Director of Legal Aid Casework and the
to this was to reply that it was not possible to collect the data to Lord Chancellor [2014] EWCA Civ 1622. A further challenge to the
verify or to deny this; see LASPO Review (above n. 8), p. 65. scheme was brought in 2016; see IS (by way of his litigation friend,
325. S ee H. Connelly, “Without my family: The impact of family the Official Solicitor) v. Director of Legal Aid Casework and the
separation on child refugees in the UK” (Amnesty International Lord Chancellor [2016] EWCA Civ 464.
UK, the Refugee Council and Save the Children, 2019), available 337. A notable example in this regard is the Public Law Project’s
at https://resourcecentre.savethechildren.net/library/without- training and resource development around the subject; see
my-family-impact-family-separation-child-refugees-uk. See also https://publiclawproject.org.uk/exceptional-case-funding.
UNHCR, Family Reunion in the United Kingdom (above n. 4), p. 2.
338. Legal Aid Statistics Quarterly: January to March 2020;
326. T he stated purpose of the introduction of ECF was “to enable Table 8.2: Exceptional Case Funding (ECF) by category of
compliance with ECHR and EU law obligations in the context of a law; available at https://www.gov.uk/government/statistics/
civil legal aid scheme that has refocused limited resources on the legal-aid-statistics-january-to-march-2020.
highest priority cases”. See Lord Chancellor’s Exceptional Funding
339. Legal Aid Statistics Quarterly: January to March 2020; Table 8.2:
Guidance (Non-Inquests), para. 8, at https://assets.publishing.
Exceptional Case Funding (ECF) by category of law; available
service.gov.uk/government/uploads/system/uploads/attachment_
at available at https://www.gov.uk/government/statistics/
data/file/477317/legal-aid-chancellor-non-inquests.pdf.
legal-aid-statistics-january-to-march-2020.
327. S ee LASPO, Part 1, s. 10(3), providing that an Exceptional Case
340. See Legal Aid Statistics Bulletin: January to March 2020,
Determination will be made by the Director of the Legal Aid
https://assets.publishing.service.gov.uk/government/uploads/
Casework when “(a) […] it is necessary to make the [civil legal]
system/uploads/attachment_data/file/895088/legal-aid-
services available to the individual […] because failure to do so
statistics-bulletin-jan-mar-2020.pdf, at p. 16. In the 2019-2020
would be a breach of— (i) the individual’s Convention rights (within
financial year, immigration matters constituted 67.3% of the
the meaning of the Human Rights Act 1998), or (ii) any rights of
total number of ECF applications and approximately 79.3% of
the individual to the provision of legal services that are enforceable
the overall number of successful ECF applications. See ibid.,
EU rights, or (b) that it is appropriate to do so, in the particular
Table 8.2: Exceptional Case Funding (ECF) by category of
circumstances of the case, having regard to any risk that failure
law; available at https://www.gov.uk/government/statistics/
to do so would be such a breach”.
legal-aid-statistics-january-to-march-2020.
328. See LASPO, Part 1, s.11 (Qualifying for civil legal aid).
341. See chapter 2.
329. See OISC Guidance, “Clarification of OISC’s jurisdiction”,
342. See, e.g., BRC, Not So Straightforward (above n. 3). Of the 91
June 2016, at https://www.gov.uk/government/
applicants for RFR considered in the report, 51% were exposed
publications/clarification-of-the-oiscs-jurisdiction/
to security risks in the country in which they were living (of which
clarification-of-oiscs-jurisdiction.
 Refugee Family Reunification in the UK: Challenges and Prospects | 103

97% were women or children), and of the 67 cases involving Refugee support charity, 2 July 2020.
children, 36% (24) were made on behalf of children in uncertain 362. See https://rmcentre.org.uk/get-help/.
living arrangements, without a permanent carer and in unsafe 363. Interview with caseworker, 17 February 2021.
economic, social and physical conditions.
364. Interview with Operations Manager, BRC RFR Project,
343. Interview with Financial Inclusion caseworker, Refugee support 11 June 2020.
charity, 24 June 2019. Although there were sponsors interviewed
365. Interview with Service Coordinator, BRC Refugee Services,
who had left the process of application for several years, most had
South West, 11 February 2019.
applied within six months of being granted refugee status.
366. Interview with Financial Inclusion caseworker, Refugee support
344. Ministry of Justice, Proposals for the Reform of Legal Aid in
charity, 24 June 2019.
England and Wales, CP12/10, November 2010, p. 68, para 4.202.
367. “I think that’s where the charity sector comes into its own – the
345. The BRC initially responded to LASPO with a report, published
sponsor would be supported by the charity and you’d think about
in 2015, on the need for qualified legal support in family reunion.
moving towards arrival and the needs of the family when they
The report studied the experience of 91 sponsors in refugee family
get here, looking for new accommodation and things. But as a
reunion cases. Its conclusions included the fact that almost two
solicitor, it is just “don’t call us, we’ll call you’” (Interview with OISC
thirds of the applicants needed English language support with their
regulated adviser, 28 April 2019).
applications, almost three quarters of the applicants were missing
at least one form of documentation and one third relied on witness 368. UNHCR, Family Reunion in the United Kingdom (above n. 4), p. 8.
statements which were produced by legal advisers. Almost one 369. See https://www.lawcentres.org.uk/about-law-centres/
quarter of applications involved children who were either de facto set-up-a-law-centre.
adoptions, or younger siblings. See BRC, Not So Straightforward 370. Law Centres: Written question – 273435, at https://www.
(above n. 3), p. 8. See also GMIAU, Briefing Paper (above n. 3). parliament.uk/business/publications/written-questions-answers-
346. UNHCR, Family Reunion in the United Kingdom (above n. 4), p. 3. statements/written-question/Commons/2019-07-04/273435/ (11
347. The BRC has recently published a revised edition of their guide July 2019).
to RFR, which is meant to be a how-to manual to help people 371. “Law Centres on Google maps”, Law Centres Network [online] (at
make the RFR application on their own. The booklet runs to 63 6 June 2020), https://www.lawcentres.org.uk/about-law-centres/
pages and takes the applicant/sponsor step-by-step through law-centres-on-google-maps/geographically
the process, including by providing practical guidance on how to 372. Source: data collected from Law Centres websites,
prepare an electronic bundle and what to do if you have missed followed up with phone calls.
your appointment. The BRC is however clear that, due to the 373. The 2019 Annual Report of the Islington Law Centre provides an
complexity of the process, the guide does not replace the need account of the challenges faced by Law Centres: “The work has
for legal support. See BRC, Applying For Refugee Family Reunion: become increasingly challenging due to the cuts to legal aid, which
A Guide to the Family Reunion Process (updated 1 July 2020), means that many people (for example those that are referred to as
available at https://www.redcross.org.uk/-/media/documents/ the ‘Windrush generation’) who are no longer entitled to get free
get-help/get-help-as-a-refugee/guide-to-refugee-family-reunion--- legal advice. Over the last few years we have sought to ensure
version-for-most-countries-2020.pdf. that we continue to provide legal advice to such people. However,
348. Community Legal Service (Funding) Order 2010. to compound matters, hostile environment policies mean that our
349. See, e.g., Refugee Action, Refugee Family Reunion – clients are now facing multiple barriers”; Islington Law Centre,
Policy Briefing, February 2016, available at https://www. Annual Report 2019, available at http://www.islingtonlaw.org.uk/
refugee-action.org.uk/resource/refugee-family-reunion- wp-content/uploads/2019/05/Islington-Law-Ctr-AR-2019-final-
policy-briefing/; Refugee Council, The Importance of low-sp.pdf.
Refugee Family Reunion (Briefing for Backbench Business 374. Interview with solicitor, Law Centre, 30 March 2020.
debate on 21 June 2018), June 2018, available at https:// 375. Interview with solicitor, Law Centre, 30 March 2020.
www.refugeecouncil.org.uk/information/resources/
376. The Islington Law Centre opened 72 immigration cases in 2019,
briefing-refugee-family-reunion-backbench-business-debate/.
but only a handful of those were RFR cases. Source: Annual
350. See https://www.redcross.org.uk/about-us/what-we-do/ Report 2019, above n. 374
how-we-support-refugees/family-reunion-integration-service.
377. Law Centres Network, “Doing Justice in Dark Times”, LCN Annual
351. Interview with Operations Manager, BRC RFR Project, 27 July Review, 2018-2019, available at https://www.lawcentres.org.uk/
2019. Of these, the first four are core locations of the project, policy-and-media/papers-and-publications/annual-reviews.
whilst the one in Manchester is an additional position funded by
378. See https://www.newcastlelawcentre.co.uk.
the Families Together programme.
379. Source: interview with immigration expert, Citizens Advice UK, 28
352. https://www.plymouth.ac.uk/courses/undergraduate/llb-law/
May 2020 (They are: Barnet, Bolton & Bury, Bradford & Airedale,
refugee-family-reunion.
Bristol, Kirklees CA and Law Centre, Reading, Rotherham,
353. Interview with Policy Officer, Families Together Partnership, 19 Royal Courts of Justice, Sheffield CA & Law Centre, Southend,
June 2020. See https://www.justrightscotland.org.uk/our-work/ Southampton, Southwark, Staffs North and Stoke, Swindon,
scottish-refugee-migrant-centre/scottish-family-reunion-service. Waltham Forest, York).
354. Interview with Policy Officer, Families Together Partnership, 380. Citizens Advice Bureaux, Introducing immigration advice clinics,
19 June 2020. February 2016, available at https://wearecitizensadvice.org.uk/
355. Interview with Operations Manager, BRC RFR Project, introducing-immigration-advice-eedf7e742b5c.
10 June 2020. 381. For example, at the University of Kent Immigration clinic, 34 cases
356. Interview with Operations Manager, BRC RFR Project, were opened in 2016/2017 (and 9 continued from the previous
27 July 2019. year). The clinic also provided second-tier advice in 77 matters.
357. Interview with Operations Manager A, BRC RFR Project, Source: Kent Law Clinic Annual Report (2017), available at https://
27 July 2019. blogs.kent.ac.uk/kentlawclinic/home/, p. 44.
358. The North West of England is the largest dispersal area in the 382. Sheffield Hallam University, Refugee Family Reunion Project,
UK, with approximately 9.381 dispersal places. See Northwest see https://www.shu.ac.uk/about-us/academic-departments/
Strategic Migration Partnership, Quarterly statistics, December law-and-criminology/about-us/refugee-family-reunion.
2019, available at https://northwestrsmp.org.uk/statistics/. 383. D. Gilchrist, F. Ridout and J. Dunn, “Immigration University Clinics
359. GMIAU Briefing Paper (above n. 3). and Regulation, A Working Case Study”, International Journal of
360. Interview with GMIAU Director, 20 February 2019. Clinical Legal Education, vol. 3 (2018), p. 135, at p. 139, available
at http://www.northumbriajournals.co.uk/index.php/ijcle/article/
361. See http://asylumjustice.org.uk/. Interview with caseworker,
view/770/1145.
 Refugee Family Reunification in the UK: Challenges and Prospects | 104

384. Interview with supervisor, University law clinic, 21 October 2019. 2020, available at https://www.instituteforgovernment.org.uk/
385. See Public Law Project, Public Law and Clinical Environments, explainers/local-government-funding-england.
May 2018, available at https://publiclawproject.org.uk/wp- 397. As a proportion of all income from government, local government
content/uploads/2018/04/Public-Law-and-Legal-Advice-Clinics- income fell from 53% in 2007/08 to 46% in 2017/18, its lowest
Final.pdf, p. 11. proportion since 2004/05. See NCVO, UK Civil Society Almanac
386. Data sets from the immigration statistics, June 2020 available at: 2020 (above, n. 396).
https://www.gov.uk/government/statistical-data-sets/immigration- 398. Methods of Increasing the Capacity of Immigration Advice
statistics-data-tables-year-ending-march-2020#asylum-and- Provision (above n. 392).
resettlement; “Asylum and Resettlement - Family Reunion visa 399. See https://www.thelegaleducationfoundation.org/articles/justice-
grants”; Table Fam_D01. together-initiative-to-support-people-to-access-justice-in-the-uk-
387. Interview with OISC Head of Operational Regulation, 8 June 2020. immigration-system-2.
388. Source: OISC Annual Report and Accounts: 2018 to 2019 (July 400. See https://frontlinenetwork.org.uk.
2019), available at https://www.gov.uk/government/publications/ 401. OISC Annual Report 2018/2019, p. 18 available at: https://assets.
oisc-annual-report-and-accounts-2018-to-2019 and OISC Annual publishing.service.gov.uk/government/uploads/system/uploads/
Report and Accounts: 2019 to 2020 (July 2020), available at attachment_data/file/816147/OISC_-_Annual_Report_2018_Text_
https://www.gov.uk/government/publications/oisc-annual-report- WEB.pdf.
and-accounts-2019-to-2020. The number of not fee-charging 402. Interview with Project Manager, Family Reunion Integration Service,
organisations does not include the Citizens Advice Bureaux which British Red Cross, Glasgow, 25 July 2019; Scottish Government,
are exempted from registration at Level 1. See section 6.1.2 above Scottish Welfare Fund Family Reunion Crisis Grant, May 2018,
on CABx. available at www.gov.scot/binaries/content/documents/govscot/
389. Source: OISC Annual Report and Accounts: 2019 to 2020, publications/advice-and-guidance/2018/05/scottish-welfare-
available at https://www.gov.uk/government/publications/oisc- fund-family-runion-crisis-grant-guidance/documents/00535442-
annual-report-and-accounts-2019-to-2020, p. 13. This number pdf/00535442-pdf/govscot%3Adocument/00535442.pdf.
does not include 352 Citizens Advice Bureaux which can give 403. The creation of an online community of practice is one of the
immigration advice at Level 1 due to a blanket exemption granted solutions indicated also in a recent report exploring avenues
by the OISC. for expanding the capacity of the immigration advice sector.
390. Ibid., p. 14. See Methods of Increasing the Capacity of Immigration Advice
391. A recent report exploring avenues for increasing immigration Provision (above n. 398).
advice found that the project had “the promise of boosting 404. See http://www.asaproject.org/about
lower-level immigration advice capacity in the sector significantly, asylum-support-advice-network.
particularly in advice deserts, for a relatively small project 405. S taff from the Home Office and local authorities are expressly
intervention”. See C. Hutton and J. Harris, Methods of Increasing excluded from membership.
the Capacity of Immigration Advice Provision, May 2020, https://
www.phf.org.uk/publications/methods-of-increasing-the-capacity-
of-immigration-advice-provision, p. 53.
392. This work has been largely successful and the number of not
fee-charging organisations registered with OISC has risen from a
low of 208 in March 2016 to 236 in May 2020; see OISC Annual
Report 2018/2019, p. 21; OISC Annual Report 2015/2016, p. 18,
at https://assets.publishing.service.gov.uk/government/uploads/
system/uploads/attachment_data/file/583681/10574-OISC_
Annual_Report_2016_Accessible2.pdf. For discussion of the
impact of LASPO on the immigration advice sector, see section
5.3 above.
393. CAF, Charity Landscape 2019, available at https://www.
cafonline.org/about-us/publications/2019-publications/
charity-landscape-2019.
394. For an initial assessment of the impact of the COVID-19 crisis on
the charitable sector, see CAF, Charity Coronavirus Briefing, May
2020, available at https://www.cafonline.org/docs/default-source/
about-us-publications/caf-charity-coronavirus-briefing-june-2020.
pdf?sfvrsn=b1e17047_2.
395. Their share of the sector’s income has almost continuously grown
from 38% in 2000/01 to 54% in 2017/18. See NCVO, UK Civil
Society Almanac 2020, available at: https://almanac.fc.production.
ncvocloud.net/financials.
396. Institute for Government, “Cuts to local government”, 10 March
 Refugee Family Reunification in the UK: Challenges and Prospects | 105

List of Organisations Interviewed

- Amnesty International UK - Nottingham and Nottinghamshire Refugee
- Asylum Justice Forum
- British Red Cross, Dublin Project, - Nottingham City Council, Community
London Office Cohesion Team
- British Red Cross, Policy Team, - Nottingham City Council, Portfolio Holder
London Office for Communities
- British Red Cross, Refugee Family Reunion - Nottingham City Council Resettlement
Integration Services, Glasgow Office Team
- British Red Cross, Refugee Family Reunion - Office of the Immigration Services
Project, London Office Commissioner (OISC)
- British Red Cross, Refugee Services, - Plymouth University Law Clinic, Refugee
Birmingham Office Family Reunion Project
- British Red Cross, Refugee Services, - RefuAid
Bristol Office - Refugee Council
- Central England Law Centre - Refugee and Migrant Centre
- Families Together Coalition - Refugee Family Reunion Clinic, Sheffield
- Families Together Programme, BRC Hallam University
- Greater Manchester Immigration Aid Unit - Refugee Legal Assistance Project (RLAP),
University of Bedfordshire
- Independent Chief Inspector of Borders
and Immigration - Safe Passage
- Islington Law Centre - UNHRC, United Kingdom
- Just Right Scotland - Wilsons Solicitors LLP
- North East Law Centre
 Refugee Family Reunification in the UK: Challenges and Prospects | 106

Glossary and Acronyms

Applicant Family member of a refugee in the UK making the application

CAB / CABx Citizens Advice Bureau/Bureaux

CEAS Common European Asylum System

CJEU Court of Justice of the European Union

CRC Convention on the Rights of the Child

Disbursement Money granted by the Legal Aid Authority to cover additional expenses
in a case, for example expert reports, interpretation, translation, etc.
DMC Decision Making Centre

ECF Exceptional Case Funding

ECO Entry Clearance Officer

EIN Electronic Immigration Network

ECtHR European Court of Human Rights

Family reunification Process of bringing together members of refugee families, particularly

children, spouses and other dependent family members
Refugee Family Reunion Immigration route under Part 11 of the UK Immigration Rules
HRC Human Rights Committee

ICCPR International Covenant on Civil and Political Rights

IHS Immigration Health Surcharge

ILPA Immigration Law Practitioners’ Association

LASPO Legal Aid, Sentencing and Punishment of

Offenders Act 2012
LOTR Leave outside the Immigration Rules

Matter Start Each case awarded under contract by the Legal Aid Authority
is described as a matter start
NGO Non-governmental organisation

OISC Office of the Immigration Services Commissioner

RFR Refugee Family Reunion

Sponsor Individual with refugee status (or humanitarian protection)

sponsoring the RFR application of the family members
SRA Solicitor Regulation Authority

UASC Unaccompanied asylum seeking children

UKVI UK Visas and Immigration

UNHCR United Nations High Commissioner for Refugees

FamiliesTogether
A programme managed by the British Red Cross

British Red Cross

44 Moorfields
London
EC2Y 9AL
www.redcross.org.uk
[email protected]
(+44) 207 138 7900

The British Red Cross Society, incorporated by Royal

Charter 1908, is a charity registered in England and Wales
(220949), Scotland (SC037738) and Isle of Man (0752).