Editorial

pp.114

On 8 May 2011, the Guardian reported that the practice of ‘virginity testing’ on South Asian fiancées, which caused such anger when first disclosed in the late 1970s, had been far more widespread than admitted. 1 That will not be a surprise to those familiar with the entry clearance procedures of the time. Virginity tests (which entailed an intimate physical examination that purported to detect if a woman was a virgin and thus a bona-fide fiancée) were only the most egregiously abusive and humiliating of a set of procedures that resulted in lengthy delays (of ten years or more) in processing and the unjustified mass refusal of thousands of applications by the family members of predominantly South Asian migrants (or their UK-born children) to join their loved ones in the UK. The report reminded many of the bad old days of entry clearance and the depths to which the British immigration service descended.

The period after 1997 showed some improvement in the treatment of family members with the reduction of queues, the abolition of the hated ‘primary purpose’ rule and the recognition of same sex and unmarried relationships. These advances must be set against continuing reports of very poor decision-making at some posts (as reports by the Independent Monitor and now the Chief Inspector of the UK Border Agency show) and new measures such as the ban on switching, the ill-fated ‘certificates of approval’ scheme, the raising of the minimum age to 21 and pre-entry language testing. Nonetheless, the control of family migration now operates in a different legal climate due primarily to some bold higher court decisions using the domestic application of ECHR rights through the Human Rights Act 1998. All these more recent policies except the pre-entry language test have been examined and found wanting on human rights grounds. A judicial review of the pre-entry test, which was introduced only in November 2010, is pending.

However, such improvements as there have been may now need even more vigorous defence. The government has proposed to end the funding of legal aid in Article 8 cases, making the challenges just mentioned more difficult to make. Almost contemporaneously with the report on virginity testing, it was announced that the government is contemplating the removal of appeal rights for family visitors. 2 Given that around one third of such appeals are currently successful, this would seriously compromise the family lives of the UK’s population of migrant descent as there would be little incentive for visa officers to take the time needed for a correct decision and overseas relatives wanting to come for weddings, funerals or just to meet up and spend time with their family members would have little recourse against wrongful refusal.

Family migration as a whole is likely to come under more sustained attack as part of the government’s policy of reducing long term immigration. The Migration Advisory Committee sees reducing the numbers of family migrants as necessary to achieving the government’s target of cutting immigration to ‘tens of thousands’. In November 2010, the Home Secretary Theresa May hinted at new measures against sham marriages and a longer probationary period. 3 The government has been much pre-occupied with reducing migration for work but family migration will be in the spotlight sooner rather than later. This is a cause for concern. The UK is now a country of diverse populations, many of whom maintain links with their country of origin resulting in international marriages and other forms of family-related movement. While not everyone may have agreed with the expansionist immigration policy of the Labour government, the clock cannot now be turned back. Past restrictive policies caused deep and lasting damage to relations between the UK’s minorities and the state. Excessively restrictive policies may fulfil immediate political goals but risk doing other more deep-seated and long-term damage.

Gina Clayton and Helena Wray