For a liberally minded 21st century Brit, it may come as a surprise that the right to private and family life was introduced into the British constitution (and yes, it does exist, although some may doubt it) as recently as 14 years ago by the Human Rights Act 1998. The Act is now scathed by the media for protecting those who, in the opinion of the wider public, do not deserve protection.
As a practicing immigration lawyer, I wanted to share a few comments as to the effectiveness and substance of this protection as seen from the perspective of both the domestic immigration rules and their EU counterpart.
As often is the case, protection of any right only becomes topical, or indeed constructive, where the principle, or the underlying concept, is under challenge. It was the secure grounding of the British fundamental liberties that delayed the adoption of the European Convention on Human Rights into the British legal system - we did not need protection where our liberty to enjoy family life was not threatened. Yet, the concept of a family and the degree of unity that one might expect as a natural and inherent right may, under closer scrutiny, become a cultural as well as a legal phenomenon.
In some cultures, the ties between the parent and an adult child are stronger than in others, and the ties between second degree relatives may vary from vaguely acknowledged to equalling those of most devoted siblings. It is generally accepted that eastern cultures have broader concepts of a family than what is commonly recognised in the west. In Eastern Europe, newlywed couples would more often than not continue living with the parents of either the husband or the wife, and grandparents would take a much more active role in the upbringing of grandchildren. The clash between the narrower and wider concepts of the family becomes even more pronounced in the context of clan cultures where elaborate networks of shared responsibilities and intricate hierarchy unite much broader groups than spouses and their children under the age of 18.
British citizens with overseas roots suffer the most from the austerity of the narrow concept of the family and the restrictiveness of the British immigration policy on family reunion. Our immigration rules do not allow a British citizen to bring a retired non-British parent to the UK, unless the parent is financially dependent on the British citizen and has no other relatives in the country of origin. Both requirements are harsh, and failure to meet them creates an insurmountable obstacle to family reunion. Coupled with the announced withdrawal of the right of appeal against visa refusal for family visitors, and following cancellation of the right to settle in the UK for persons of independent means with sufficiently strong ties in the UK (such as a child or a close relative settled here), the rule is designed to keep the family out unless admission is justified by compassionate circumstances.
By contrast, EU law is more generous to migrants and their family members. As a result, it has become the advantage of those who have exercised their EU right to free movement to keep their family with them as a matter of expediency, rather than extreme compassion.
EU law provides for the rights of "dependent family members in the ascending line" - in other words, parents, grandparents and great grandparents - and the rights of extended family members, such as siblings, cousins, nephews, nieces, aunts and uncles, who are either financially dependent on the sponsor or had lived in the same household with the sponsor at some point of their lives.
The tension between the generosity of one approach and restrictiveness of the other has created a tendency in the immigration officials to reconcile the two regimes, mainly by giving as restrictive interpretation to the European provisions as its unsophisticated draftsmanship permits.
The result has generated a peculiar hybrid of a family with non-reciprocal ties: a child under the age of 21 is a family member of his parents, yet the parents are not family members of the child being, as a rule, unable to demonstrate financial dependency on the child. Whereas extended family members may rely on the alternative provision of having been members of the same household, there is no equivalent option for the parent, whose rights, as a result, may be less effective than those of more distant relatives.
Surely, European draftsman did not aim for such an effect. Yet, legislation is a living creature and once born it develops a life of its own. One may wonder at developmental aberrations of European borne rights. A little over a year ago, the Court of Justice of the European Union declared it unlawful to deny a parent of an EU national child the right to live and work in the country of the child's nationality where a denial of such a right would lead to constructive expulsion of the child from the European Union. The decision is binding on the Member States, including Britain, with immediate effect. Yet, no domestic legislation has been adopted to give legal framework for this provision. Thus, non EU national parents remain in limbo, neither expulsed, nor allowed to stay.
In the midst of agitated discussions as to whether any good has ever reached Britain from across the channel, the concept of the European Union along with any rights or "liabilities" coming from the European Union are seen in opposition to domestic values and principles. And now we no longer talk about liberties beyond the need of protection. Protection we need, yet protection we lack.
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