Asylum-seeking families in current legal discourse: a UK perspective

Abstract

Asylum-seeking families in the UK tend to be regarded as a homogeneous group. This article questions that assumption and suggests that, in reality, the term ‘asylum-seeking family’ can denote various relationships between family members. There are, it is argued, many ‘typologies’ of the asylum-seeking family, and typology is crucial to the form of protection afforded to the asylum-seeker. This article examines the issues and difficulties confronting some of these typologies with particular reference to the role played by law in granting or resisting protection. A key focus is Article 8 of the 1950 European Convention on Human Rights and the developing jurisprudence before the European, as well as national, courts on the interpretation of ‘family life’ and ‘private life’. In discussing a number of recent highly significant UK cases, it will be shown that, for some types of family, Article 8 might provide a route to greater protection than is currently achievable under the asylum process.

Keywords:

• asylum
• refugee
• rights
• family life
• private life
• Article 8

Acknowledgements

I am grateful to the anonymous reviewers for their very helpful comments.

Notes

 1. As in the case of the Somalis. Somali people are divided into six major clan families, which are further divided into clans and sub-clans. The notion of ‘family’ therefore has a much wider connotation for Somalis.

 2. See, for example, the Aliens Act 1905, s.1(2); 1933 Convention Relating to the International Status of Refugees; 1951 Convention Relating to the Status of Refugees.

 3. The Gateway Protection Programme is operated by the UK Border Agency in partnership with the UNHCR. It offers a legal route for up to 500 genuine refugees to settle in the UK each year. The UNHCR undertakes the initial selection of refugees, and collaborates with the Home Office and other NGOs to ensure that these refugees are successfully integrated into UK society.

 4. ‘In assessing the relevant criteria in such a case, the Court will consider the nature and seriousness of the offence committed by the applicant; the duration of the applicant's stay in the country from which he is going to be expelled; the time which has elapsed since the commission of the offence and the applicant's conduct during that period; the nationalities of the various persons concerned; the applicant's family situation, such as the length of the marriage; other factors revealing whether the couple lead a real and genuine family life; whether the spouse knew about the offence at the time when he or she entered into a family relationship; and whether there are children in the marriage and, if so, their age. Not least, the Court will also consider the seriousness of the difficulties which the spouse would be likely to encounter in the applicant's country of origin, although the mere fact that a person might face certain difficulties in accompanying her or his spouse cannot in itself preclude expulsion.’ (para. 50)

 5. Developments on the subject of ‘insurmountable obstacles’ will be addressed later in this article.

 6. The Court of Appeal held in March 2009 that refused asylum-seekers are not exempt from charges for hospital treatment. Trusts have a discretion to withhold treatment pending payment as well as a discretion to provide treatment even if there is no prospect of receipt of payment. The Court found the current guidance on when to treat, Implementing the Overseas Visitors Hospital Charging Regulations, to be unclear and unlawful. Note the High Court judgment, which the Court of Appeal overturned, is confusingly named R (on Application of A) v. West Middlesex University Hospital NHS Trust [2008] EWHC 855 (Admin).

 7. The UKBA has amended its European Casework Instructions to take account of Metock.

 8. Draft figures for 2009 reveal that 73% of initial decisions were refusals, 17% were granted refugee status, 0% humanitarian protection and 10% discretionary leave; however, 28% of appeals to the Asylum and Immigration Tribunal were successful (Home Office 2009).

 9. A superior moral case is suggested on account of the fact that a refused asylum seeker, unlike an illegal entrant, has sought to remain in the UK though legal means, may have pressing reasons not to return to his or her country, but has failed to meet the high thresholds required by refugee law and humanitarian protection – a failure which can often be due to poor legal representation rather than weak grounds.

10. See the recent summary of Article 8 cases in the UK (Macdonald 2008).

11. This had much to do with the wording of the appeal right contained in s. 82 of the Nationality, Immigration and Asylum Act 2002 as anything else. See Yeo 2008 for an excellent discussion of this point, amongst others.

12. See R (on the application of Blackwood) v Secretary of State for the Home Department [2003] EWHC 98 (Admin) in which dispersing the applicant was likely to breach the right to a private life under Article 8.

13. Legacy cases are approximately 335,000 unresolved asylum cases relating to the period prior to the rolling out of the New Asylum Model in June 2006.