2 The Policy Context
Opportunities for families to migrate, settle and integrate are strongly shaped by migration regimes operating in countries of destination. Migration rules determine which family members can move and settle, and under what conditions. They establish the rights of migrant family members in relation to the labour market, access to social and health services. And they set the criteria for families to transition to longer-term residence, settlement and citizenship. At the same time, a range of other regulations and programmes in host countries affect families more generally, including in the spheres of employment, childcare, school systems and welfare. This makes it challenging to unravel the effects of specific regulations on family migration from the impact of the overall portfolio of immigration regulations (Bratsberg and Raaum 2010).
Such rules often act as a barrier and constraint to the well-being and flourishing of migrants. This chapter discusses some of the most significant barriers and opportunities that migrant families face. We start by setting out the relevant international human rights frameworks in which family migration policies need to be located. We then adapt the classification introduced by Eggebø and Brekke (2018), distinguishing between regulations that impact family migrants at pre-entry and entry, and once they have arrived in the host country. These phases may overlap at different points and migrant families may have members who are in different phases of immigration. We use this framework to outline current UK regulations, and place these in comparative perspective.
1. International and European human rights frameworks
Several human rights frameworks that the UK and Scotland are parties to include articles relevant for migrants and migrant families. As such, Scottish family migration policies should take these into account. Two significant ones are:
- The United Nations Convention on the Rights of the Child (UNCRC). The UNCRC is an international human rights treaty that grants all children and young people (aged 17 and under) a comprehensive set of rights to help fulfil their potential. These include rights relating to health and education, leisure and play, fair and equal treatment, protection from exploitation and the right to be heard. The UK signed the convention on 19 April 1990, ratified it on 16 December 1991 and it came into force on 15 January 1992. On 16 March 2021, the Scottish Parliament unanimously voted for the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill to become law, meaning public authorities will need to comply with children’s rights. The Bill will come into effect six months from Royal Assent. Only a handful of nations have directly incorporated the UNCRC into domestic law, and should the Scottish Parliament succeed in passing this Bill, it would become the first country in the UK to do so.
- European Convention on Human Rights (ECHR). The ECHR is an international treaty between the 47 states that are members of the Council of Europe. It sets certain standards of behaviour and protects basic human rights and freedoms. The UK signed the ECHR in 1950 and ratified it in 1951. The rights and freedoms enshrined also became part of UK domestic legislation via the Human Rights Act 1998. ECHR Article 8 (protection of private and family life) and Article 12 (right to marry and start a family) may be particularly
- germane to consider when setting policies for migrant families. It should be noted that Brexit could impact the protection of human rights in the UK due to the government’s decision to end the effect of the EU Charter of Fundamental Rights upon leaving the EU, although it is worth noting that there is no direct connection between the UK’s membership of the ECHR and membership of the EU.
These conventions make clear that the treatment of the family and of children are important objects of the international human rights framework, and these considerations should (continue to) act as the cornerstone of UK and Scottish approaches.
The European Union has also adopted relevant legislation on family migration, including the 2003 Directive on Family Reunification. This directive established rules governing which non-EU nationals could bring their family members to the EU member state in which they were legally residing, although the UK (along with Ireland and Denmark) decided not to opt into the directive. The directive is applicable if the sponsor has been legally residing in a Member State for a certain period of time, holds a residence permit valid for one year or more, and has ‘reasonable prospects of obtaining the right of permanent residence’.
The directive does not apply to family members of EU citizens, whose rights are governed by free movement rules (set out in Directive 2004/38). The UK’s membership of the EU meant that EU/EEA nationals benefited from a more expansive set of rules on family reunion, compared to those applicable to third country (non-EU/EEA) nationals. The free movement framework enabled EU/EEA nationals to constitute and re-constitute family and household arrangements across borders in a variety of configurations. Studies revealed a wide range of relationships and flexible patterns of migration with extended family members coming and going, moving more gradually towards settlement, bringing over other relatives and close friends with whom they might share households, caring responsibilities, monetary and material resources (Kay and Trevena 2018).
2. Policies on entry
We now consider the range of national regulations that govern family migration, distinguishing two phases. The first phase covers pre-entry conditions, as well as the procedures for ascertaining eligibility for entry. The key areas of regulation are outlined below.
- Scope. This aspect of regulation determines which people are eligible as family migrants. At stake here are the kinds of relationship that states recognise as constituting ‘family’ and thus confer eligibility for family migration. The UK has taken a relatively liberal approach in determining who may apply to enter or remain in the UK as family members of British citizens or non-British settled residents. The scope includes spouses or civil partners; fiancé(e)s or proposed civil partners; unmarried partners (including same-sex partners); children; and, in a smaller number of cases, adult or elderly dependent relatives (Walsh 2021: 2). Cohabiting or same-sex couples are allowed to enter so long as they can prove that they form ‘relationships akin to a family’ (Kofman 2004: 246). Other adult family members may enter only under considerable restrictions. In the overwhelming majority of cases, they must, ‘demonstrate that they require long-term personal care to perform everyday tasks and that such care can be provided only in the UK by their sponsor, and without recourse to public funds’ (Walsh 2021: 2).
- Sponsor status. This determines who can serve as a sponsor. Many systems, including that of the UK, permit certain categories of labour migrants to be joined by their spouse or partners and children under a certain age. For example, under the UK Skilled Worker route, primary migrants can be joined by dependants. Student migrants in the UK whose course lasts longer than nine months may also be accompanied by dependants.
- Beneficiaries of international protection (including refugees) are permitted to apply for family reunification. By contrast, in most countries, migration programmes covering lower-earning or lower-skilled employment, or temporary or seasonal programmes, are far less likely to allow migrant workers to be accompanied by their families. ‘Sponsor status’ also covers rules on which residents of the host country can act as sponsors of overseas partners or other family members coming to live with them. UK citizens, and residents with indefinite leave to remain (ILR), may sponsor a spouse from overseas to come and live in the UK, if they meet the relevant attainment requirements (see below).
- Attainment requirements. This dimension concerns the conditions that need to be met by sponsors or members of migrant families in order to qualify for entry. It may cover factors such as income, education, housing and employment. In the UK, sponsors have to meet income and housing requirements before they are entitled to bring family members into the country. Since July 2012, those sponsoring family members must show that they meet the minimum income requirement of £18,600 for a partner; £22,400 for a partner and one child, plus £2,400 for each additional child. This is in addition to visa charges, and the NHS surcharge (see below). Primary migrants entering under work or student routes seeking to bring dependants with them also have to demonstrate they have enough money to support each dependant. For migrants entering under the Skilled Migrant programme, primary migrants need to have maintenance funds of £285 for a partner, £315 for one child, and £200 for each additional child.
- Attachment requirements. Many immigration systems have introduced measures that ‘test’ whether a migrant’s or a migrant family’s ties to a country are stronger than to any other country. Such tests are controversial (Bonjour and Kraler, 2015, p.1413). In the UK, those seeking to bring in dependants require proof that the main applicant and dependant have been living together in a relationship for at least two years at the time of application, and marriage and civil partnerships must be legally recognised in the UK. There must also be an intention to live together for the entire period of stay in the UK.
- Age requirements. These requirements set the age at which family members may be admitted to the country, typically as part of regulations on family union or re-unification. They can refer to the ages of spouses and parents who are admitted as the dependants of primary migrants. Most commonly, such requirements govern the maximum age at which children are allowed to reunite with their parents or carers. For example in the UK, parents may be accompanied by or reunite with children under the age of 18. However, for children aged 16 or 17, the sponsor will need to demonstrate that the child is not living an independent life, for example is not married or in a civil partnership.
- Assessment of integration potential. Many countries have introduced pre-entry tests, which are a condition of permission for families or family members to move to the host country. Such tests often aim to assess the ‘integration potential’ of migrants, for example through language tests, or demonstrating factual knowledge about the host country. In the UK, non-EU/EEA nationals applying to enter or extend their stay as a partner of a British resident need to demonstrate a level of English language proficiency (there are some exceptions to this – see Walsh 2021).
- Procedural barriers. Host countries may impose a range of other conditions on entry, including fees, in-person interviews, the requirement to apply from the country of origin, or a six-month waiting period, for example in the case of refugees. The UK requires sponsors being joined by dependants to pay £475 for a visa for each child. Almost all categories of migrants have to pay an annual healthcare surcharge of £624 per year for adult family members, and £470 for students or children.
3. Policies on stay
This phase covers both the rights and restrictions imposed on migrant families once they have been admitted, and the rules governing the length of stay and transition to longer-term residence and citizenship acquisition. The key dimensions that states regulate cover:
- length of stay. Where families accompany a primary migrant who is moving for the purpose of work or study, they will typically be permitted to stay for the full duration of that person’s residency. For example, in the case of skilled migrants, spouses and children may join the primary migrant, and any subsequent extension of their stay will also mirror that of the primary migrant. Typically, migrants and their families who enter through immigration routes can apply for indefinite leave to remain after five years of residence. Similarly, family members joining a UK resident from overseas will need to have been in the UK for five years before they can apply for ILR. This status allows them to stay independent of their relationship to the sponsor, thus ending their legal dependency on the sponsor.
- work. Families joining a primary migrant may have restricted access to the labour market. In the UK, family members permitted to enter generally have the right to work. Indeed, the UK allows spouses of students, work permit holders and migrants undertaking training to enter with the right to work, setting it apart as ‘more liberal’ than many other European states (Kofman, 2004: 247). Migrants entering the UK on a family visa are in fact less restricted in their choice of employment than a principal migrant entering for example on a Skilled Worker (formerly Tier 2) visa, since the jobs which they take up do not have to meet skills or salary thresholds.
- social and public services. Typically, migrants entering to form or reunite with family do not have recourse to public funds, meaning that they cannot access benefits (except those based on National Insurance contributions), until they receive Indefinite Leave to Remain (ILR). Children in migrant families typically have access to (and are expected to attend) school, although access to further or higher education and training may be limited for those without ILR. In the UK, migrants are required to pay the Immigration Health Surcharge (see above).
- citizenship. Access to citizenship is typically enabled after a period of several years, although this depends on the programme through which migrants entered. In the UK, those who have ILR may apply for citizenship one year after being granted this status. Applicants need to prove that they are of ‘good character’ (in relation to aspects such as debt, criminal offenses, or unpaid tax); demonstrate that they understand English (unless they are under 18 or over 65 years of age); and pass the Life in the UK test. There is a charge to apply for citizenship of £1,330 for adults, and £1,012 for children. It is worth noting that this charge was recently deemed unlawful by the Court of Appeal, as it failed to comply with the Home Secretary’s statutory duty to safeguard and promote the welfare of children.
4. UK policies in comparative perspective
UK regulations on family migration are generally designed to allow migrants to move or be joined by their families; but they are also oriented to ensuring that migrant families are economically stable, and to preventing perceived abuse of family migration routes. For this reason, rules on entry are generally fairly rigorous, setting a range of conditions and fees that can make family migration or reunion unfeasible for many migrants.
In particular, the minimum income requirement for sponsors to form or reunite with family from overseas has been criticised as conflicting with family and children’s rights. Analysis by the Migration Observatory suggested that around 43% of ‘white’ employees and 51% of ‘non-white’ employees in the UK did not earn enough to sponsor a non-EEA partner. The figure rose to 51% and 59% (respectively) employees unable to sponsor a spouse with one child (Sumption and Vargas-Silva).
The UK also charges relatively high fees for ILR and citizenship compared to other countries. While a number of European countries have introduced more stringent criteria for permanent residency and citizenship over the past decade (Stadlmair 2018), the UK stands out as one of the most expensive. These hurdles to entry and settlement imply that less financially secure families enjoy more restricted rights to family reunification. Such differentials are likely to exacerbate existing geographical disparities in patterns of migration, as we shall see in Chapter 3. Residents or families in remote and rural areas, where salaries tend to be lower, will be less likely to be able to bring over families, or to achieve more stable residency status.
More generally, as we saw in Chapter 1, many of the assumptions about family migration underlying policy frameworks do not accommodate their characteristics and needs. For example, spouses may want or need to work, but can be impeded by limited support and being cut off from their childcare networks. Families may not be able to afford the fees for applying for ILR or citizenship, especially if they have several children. This can have the counter-productive effect of discouraging people from applying for more stable status, thereby impeding integration and settlement.
One way of gaining an overview of UK policies in comparative perspective is through the Migrant Integration Policy Index (MIPX), which is used to evaluate and compare what governments are doing to promote the integration of migrants in 58 countries across 8 policy areas: access to nationality, anti-discrimination, education, family reunification, health, labour market mobility, permanent residence, and participation. In its 2020 ranking, the MIPX assesses the UK immigration system as ‘halfway favourable’ for overall migrant integration, classifying its approach as ‘Temporary Integration’, putting it in the same category and ranking range with countries such as France, the Netherlands, Italy and Germany.
However, in relation to provisions on family reunification, the UK ranks second from the bottom among MIPX countries, scoring a ‘slightly unfavourable’ rating. The MIPX notes in its assessment that migrants ‘face unfavourable, restrictive requirements and definitions of family. Family-reunited migrants do not enjoy a fully secure future.’ In contrast, the four highest-ranking countries in the MIPX all score strongly in the family reunion policy area with either ‘favourable’ or ‘slightly favourable’ family reunification policies, as shown in the table below.
|Country and overall MIPX rank||MIPX overall score (out of 100)*||MIPX classification of country’s approach to migrant integration**||MIPX family reunion score (out of 100)*||MIPX family reunion categorisation***|
|Sweden||86||Comprehensive integration||71||Slightly favourable|
|Finland||85||Comprehensive integration||67||Slightly favourable|
It is worth noting the types of policies that have contributed to higher ratings for these countries.
Sweden has more generous policies on family reunification. Sponsors do not need to be citizens or permanent residents, but only need to have a right to reside of one year or more. Moreover, the income threshold for sponsors is much lower: Swedish citizens or residents sponsoring non-EU family members do not need to demonstrate they can economically maintain incoming family members, but only that they can support themselves (Bech et al 2017). The intention of this measure was to ‘promote integration by increasing incentives for people to obtain work, earn their own living and move to municipalities where they have a good chance of obtaining work and a place of their own to live’ (cited in Bech et al 2017). Sweden, like the UK, has a universal health system, and migrants are not required to pay a healthcare surcharge.
Canada has a more expansive definition of the scope of family members who can join a relative in the country. This includes a higher cut-off age for children (under 22, rather than under 18 as in the UK), although reunification may be subject to caps. Canada also has an unusual provision whereby citizens and permanent residents may sponsor one extended family member (of any age) if the sponsor does not have a close relative who is a Canadian citizen or resident, and they do not have a close living relative they could sponsor instead, such as a spouse, child or parent (Hooper and Salant 2018). Policies also allow adult residents to be joined by parents or grandparents, although there is an income requirement and a commitment to support dependants for 20 years. There is also an annual quota for this route, which typically becomes exhausted very rapidly. However, there are long waiting times for family reunification, with the implication that immigrant families often remain separated for prolonged periods. As in the case of Sweden, rules on income thresholds are also less restrictive. Sponsors must assume financial responsibility for family members for three years for a partner, or longer for a child until they turn 22. However, there are no income requirements for sponsors.
Portugal has developed widely praised approach to migrant families, within its wider package of support for migrant integration. Local Centres of Migrants’ Integration Support (CLAIM) consist of 99 information and support offices across the country, which are partnerships between central government and regional government, local authorities, and civil society groups. They cover issues such as regularisation, citizenship, family reunification, housing, work and entrepreneurship, social security, health and education.
In Chapter 5, we consider in more detail possible lessons learned and recommendations for supporting family integration at Scottish and local authority level. Before doing so, Chapters 3 and 4 provide data on the situation of migrant families in the UK and Scotland.
- Migration rules in countries of destination determine which migrant family members can move and settle, and under what conditions. Such rules should align with international and European human rights framework. Notably, the UN Convention on the Rights of the Child codifies rights on health and education, leisure and play, fair and equal treatment, protection form exploitation and the right to be heard. The European Convention on Human Rights (which is not an EU instrument, but a treaty between 47 member states of the Council of Europe) enshrines the right of protection of private and family life, and the right to marry and start a family.
- National policies on entry determine which family members are eligible for family migration, and who can serve as a ‘sponsor’ for family reunification or to be joined by a partner from overseas. Such rules often set attainment requirements (e.g. income thresholds), and various conditions for family members to migrate such as age requirements (e.g. a maximum age for children).
- National policies also determine the rights of migrants and their families once they have arrived, including length of stay, access to work, access to social and public services, and pathways to permanent settlement and citizenship.
- In comparison to other OECD countries, the UK has relatively generous provisions on who may apply to enter or remain in the UK as family members, with the scope including unmarried/cohabiting partners as well as same-sex couples, and (dependent) children under 18. Family members can generally access work, indeed partners joining a primary migrant under the skilled workers programme can access work at any salary or skills level.
- However, the UK has a minimum income requirement of £18,600 for sponsors to form or reunite with family from overseas policies on family migration; this rises to £22,400 for a partner and one child, and a further £2,400 for each additional child. In addition, families need to pay visa charges and the NHS surcharge. This requirement has been widely criticised as infringing on the rights of children and on family life. Moreover, as we shall see in Chapter 3, it raises equalities issues, including across different parts of Scotland.
- Settlement can also be very expensive; the fees associated with applying for Indefinite Leave to Remain and citizenship making it challenging for families to acquire a more stable status in their host country. For example, the charge to apply for citizenship is £1,330 per adult, and £1,012 per child.
- On the widely respected Migrant Integration Policy Index, out of 58 countries, the UK ranks second from the bottom for provisions on family reunification. The countries ranking highest are Sweden, Finland, Portugal and Canada.