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Manufacturing risk: the exclusionary effect of positive discretion in the family immigration rules


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The immigration rules are full of harsh general rules accompanied by potential exceptions. These exceptions require a subjective judgment to be made and they make the rules complex. They also manufacture risk for applicants, making the outcome of immigration applications hard to predict. Unpredictability, combined with the high financial and other costs of applying, can act as a powerful deterrent to making such an application. Even where the applicant goes ahead despite the risk, they and their family often experience social, economic and emotional punishment as part of the process, as a recent report by IPPR demonstrated.

The various exceptions built into the family immigration rules are presented by the government as offering a means of entry to families who would otherwise be separated. This rule type takes various forms. Sometimes the wording literally states that there must be ‘exceptional circumstances’. Other broadly synonymous terms such as ‘reasonable’, ‘compelling’, ‘unduly harsh’, ‘insurmountable’ and ‘very significant’ are sometimes deployed. Sometimes the quality of the relationship must be assessed by the official making a visa decision. All of these tests require a subjective judgment to be made.

These rules are said to comply with human rights law obligations to respect family and private life. No doubt ministers and officials do genuinely see the rules in this light. The 2012 immigration rules were deliberately written to be both exclusionary for many families and to be hard-edged and absolute in effect. The White Paper preceding the rules made this plain. The various amendments to these rules over the last decade were hard won by migrant families and campaigners and very reluctantly conceded by government.

And on one level it is true that some exceptions do, given the terms of the ‘normal’ rules, enable some families to live together who would otherwise be separated. This framing is fundamentally flawed, though. The rules operate not to include but to exclude.

Exclusion not inclusion

There is no objective need for the immigration rules to exclude so many families from secure immigration status. This is a policy decision. It would be plainly be possible to write the rules differently so that families did not have to resort to the various exceptions.

The exceptions should therefore never be regarded as generous or as enabling in any way. Rather, the immigration rules should be understood as exclusionary. They operate as opportunities for the exclusion of those deemed undesirable or non-conforming.

Further, the rules operate to create two classes of family migrant. The privileged class are those that meet the ‘normal’ immigration rules. These migrants are granted five years of residence, after which they are entitled to apply for settlement. The second class, who are marked out as undesirable and only grudgingly admitted at all, are those who qualify under an exception to the normal rules. They are granted only two and a half years of residence and they must repeatedly reapply every two and a half years until they eventually qualify for settlement after ten years of residence. This ten year route to settlement imposes very considerable costs on the affected families, as discussed later.

Finally, the exceptions themselves act in an exclusionary way and are intended to do so. For the reasons explored here, the exceptions manufacture an unpredictable risk of refusal as well as manufacturing high financial and other costs for applicants. The risk combined with the cost acts as a powerful disincentive. It is highly likely that families whose applications would ultimately succeed if they applied are deterred from making such applications. An already marginalised and precarious family finds it impossible to budget, both financially and emotionally, to make an unpredictable and punishing application for legal status.

Positive and negative discretion

Some of the exceptions in the immigration rules are positive; a person might be granted status even though they do not meet what might be considered the ‘normal’ immigration rules. For example, earnings of £18,600 normally have to be demonstrated in order to sponsor a partner for a visa, other than in certain circumstances. In this situation, immigration officials can be said to be permitted to exercise a positive discretion.

Other exceptions are negative; a person might be refused status even though they do meet the normal immigration rules. For example, a person might meet the normal criteria for entry as a visitor and be expected to succeed with their application but for the fact they have have behaved previously in ways which are considered not conducive to the public good, leading to their refusal. A refusal on this basis can be said to be owing to exercise of a negative discretion conferred on immigration officials by the immigration rules.

Negative discretion is obviously exclusionary. My argument here is that positive discretion also operates to exclude.

Risk and uncertainty

The level of risk associated with exceptions to the ‘normal’ immigration rules can vary according to how they are worded and interpreted.

Where the exceptions are tightly and objectively defined, the level of unpredictability and therefore risk is potentially reduced. For example, the modern immigration rules are clear, if one knows where to look, that a person with a criminal conviction and sentence of more than 12 months’ of imprisonment is going to be excluded even if they would otherwise qualify for entry. There is little scope for a subjective judgment to be made. The existence of this rule may be obscured by the sheer length and structure of the immigration rules but the rules as a whole are fairly clear on this point. Use of a knowledgeable lawyer would eliminate most of the uncertainty in these circumstances.

Where an exception is loosely defined and subjective, the level of risk increases, potentially substantially. The various ‘exceptional circumstances’ tests in the immigration rules lie at the very top end of a spectrum of uncertainty. Their meaning and interpretation is totally opaque to any lay reader, whether they are a member of the public directly affected by the rules attempting to understand their own situation or a policy maker who is attempting to ascertain the potential impact of the rule in question. Other tests require an evaluation of the quality of a relationship, which inevitably requires a high level of subjective judgment.

The fundamental problem for any applicant attempting to assess whether they might pass such a test is that they have no knowledge or experience on which to base their assessment. They cannot know the situation of other comparable applicants or how other comparable cases have previously been decided. Even many immigration lawyers will have relatively little direct knowledge on which to draw, although knowledge can to some extent potentially be pooled with other lawyers within a firm or organisation or by means of professional networks.

Exceptional circumstances

The immigration rules applicable to families are replete with examples of tests which require an applicant to prove some sort of exceptional circumstances.

Some of these tests appear in the section of the rules on families, called Appendix FM. Others appear in the rules on deportation, which are set out in primary legislation in the Nationality, Asylum and Immigration Act 2002. One of the first challenges for any family seeking to rely on these exceptions is even finding them.

To take one typical example, an overarching provision enables waiver any of the normal criteria for entry as a family member set out at paragraph GEN.3.2(1) of Appendix FM:

there are exceptional circumstances which would render refusal of entry clearance, or leave to enter or remain, a breach of Article 8 of the European Convention on Human Rights, because such refusal would result in unjustifiably harsh consequences for the applicant, their partner, a relevant child or another family member

An identical test at GEN.3.1(1) applies where person seeks reliance on third party financial support.

If we deconstruct this provision, the meaning of each of its constituent parts is obscure. When a circumstance might be ‘exceptional’ is unclear, particularly given that case law dictates that this is not a simple numerical question of being in a small minority of cases. Requiring that the exceptional circumstance is one that breaches Article 8 of the European Convention on Human Rights legalises the question by reference to voluminous international and domestic case law. The final component of ‘unjustifiably harsh consequences’ is presented as if it clarifies the earlier criteria but in reality acts as a complicating consideration. Not only does the question of what would amount to a ‘harsh’ consequence arise but the ‘unjustifiable’ qualifier appears to import an element of moral judgment.

Guidance issued by the Home Office to its officials purports to explain how the test should be applied in practice. It sets out relevant factors that an official will take into account along with examples of circumstances that are not likely to amount to unjustifiably harsh circumstances. The document is inaccessible to anyone except a genuine subject expert who knows where to find it. Even for those who can access it, though, it provides limited assistance in assessing whether a real world set of facts will or will not be judged to meet the test.

Ultimately, whether any set of facts might satisfy this complex, compound test is unknowable. Lawyers and advisers may acquire individual and collective shared experience of what real world circumstances have been judged to satisfy the rules in the past. But even then judgments of whether an application might succeed or fail will sometimes be wrong. Different decision makers at the Home Office may apply the test differently.

Paragraphs EX.1(b) and EX.2. of Appendix FM, which apply where a partner wishes to remain in the United Kingdom but does not meet the normal immigration rules, require the demonstration of an ‘insurmountable obstacle’ to living with the partner abroad. The meaning is further elaborated, but not really explained, as amounting to

very significant difficulties which would be faced by the applicant or their partner in continuing their family life together outside the UK and which could not be overcome or would entail very serious hardship for the applicant or their partner.

This is really just a variation on the ‘exceptional circumstances’ test but its very existence separate to that test confuses the interpretation of both. It is not clear whether the tests are genuinely separate, distinct tests or whether they overlap.

A similar assessment of when it might be ‘reasonable’ for a child to live outside the United Kingdom is required by paragraph EX.1(a)(ii) of Appendix FM.

Subjective and ambiguous tests also apply in the context of deportation. These are set out in section 117C of the Nationality, Immigration and Asylum Act 2002, as amended by the Immigration Act 2014. Someone who has lived half their life in the UK must still show they are ‘socially and culturally integrated in the United Kingdom’ and that there would be ‘very significant obstacles’ to their integration into the destination country. In other circumstances the person facing deportation must show the impact of their deportation on their partner or child would be ‘unduly harsh’ or that there are ‘very compelling circumstances’.

Quality of relationship

Assessment of the quality of relationship is required for partners and children to obtain entry or residence. It is an inherently subjective and ambiguous exercise.

Partners must demonstrate a ‘genuine and subsisting’ relationship. In the context of a married couple, these words have been interpreted by judges as requiring something more than the bare existence of a formal marriage. Beyond that, it is impossible to know what is really required.

Parents must prove a ‘genuine and subsisting parental relationship’ and, depending on the circumstances, may have to prove ‘sole responsibility for the child’s upbringing’ or ‘serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child’s care’. Again, the application of these tests to the many and varied real world situations in which actual families find themselves is far from clear.

These provisions relating to the quality of relationship are arguably less opaque than the various ‘exceptional circumstance’ type tests, but they are more intrusive and certainly cause uncertainty. Applicants do not know what evidence, if any, to include with an application in order to satisfy the tests. They often seek to submit far too much evidence or far too personal a nature for fear of refusal. Family situations that are unusual or ‘non normal’ in some way, as conceived by the rule drafters and rule operators, may well be perceived as being at higher risk of refusal. In this way, there is no explicit or provable bar to families considered unconventional — non-resident partners or parents, for example, or arranged marriages — but they are nevertheless excluded. Or, failing that, penalised.

Risk and discrimination

Any discretionary judgment, whether positive or negative, carries with it a high risk of discrimination. This might take the form of direct or conscious discrimination on the part of the decision maker. The greater risk is probably of indirect, or unconscious discrimination on the basis of stereotypes, assumptions or prejudices. Heavy reliance on discretion in the highly racialised context of immigration control is very likely to lead to discrimination taking place in practice. This will often be on the basis of race but may also occur based on nationality, class, gender and other attributes.

The subjective elements of the immigration rules therefore risk exposing applicants to discrimination. This compounds their situation by heightening the risk of refusal. It is already the most marginalised and discriminated against groups who have to rely on these rules in order to secure entry. It is axiomatic that they are already in a mixed status relationship and it is women, ethnic minorities and those living outside London are least likely to be able to meet the minimum income rule for spouses, for example.

Further, it is these groups — those who are forced into the situation of having to rely on the exceptions to the rules — who are least able to bear the costs associated with making an application which bears a high risk of refusal.

Financial and other costs

There are high costs associated with any immigration application. These costs are financial and emotional. The costs increase considerably for an application the outcome of which is uncertain.

The fee for making an application is already high. At the time of writing, the upfront cost from within the United Kingdom is set at a minimum price of £1,048 per person. This is non-refundable in the event of a refusal, despite a considerable element of the price supposedly reflecting the benefits of it being successful. Two such applications must be made before qualifying for settlement. A further £3,120 must be found for a five year visa application for the mandatory ‘health surcharge’. This is refunded in the event of a refusal. The combined minimum cost of £5,216 represents a substantial sum and this is before legal and other costs are added.

The cost of application is often higher in practice because families will where possible opt to pay for ‘premium’ services from the application processing company contracted by the government.

The the total costs of achieving settlement are far higher for low income families and others who have to rely on exceptions to the normal rules. A low income family must make four applications over ten years before qualifying for settlement. They must also pay for ten years, not five, of the health surcharge. The total cost to allow income family, at today’s prices, will actually be £10,432. This is basically double the amount payable by the high income family, albeit spread over a longer period.

The actual costs will be higher still because immigration application fees and the health surcharge are likely to increase over that time. Those already on the path to settlement are not protected from such price increases.

The costs described so far are those payable directly to the government and the processing company. A family that is relying on exceptions to the normal rules or other rules that require positive exercise of discretion will incur additional costs. In particular, the cost of legal advice is likely to be higher for a low income family. They are more likely to require legal advice in the first place because of the ambiguity of the exceptions and the impossibility of knowing how the exceptions in question might apply to their situation. To be worthwhile, the legal advice in question needs to be of high quality, which can come at a cost premium. Further, the need for four applications rather than one means that a higher volume of advice is required, in the sense that the lawyer will need to assist with multiple applications.

There is therefore a considerable financial premium payable by families who have to rely on the exceptional circumstances rules. These costs operate as both a very high barrier to entry and as a punishingly high ongoing cost.

Making any immigration application is time-consuming and inconvenient. Making one with an unknown risk of refusal is likely to be stressful. A low income family must make more of these applications than a high income family and must pay more to do so, because of the necessity of more expensive legal advice in order to mitigate the risk of refusal.

The indirect costs should not be underestimated. A heavy burden is imposed on those concerned, who will at the very least experience opportunity costs. As well as money that might have been spent on other activities or services or accommodation, the family undergoing this process will also have lost considerable time and energy. This may well impose strain and adversely affect the family.

In the meantime, the low income family will also experience precarity of status and the consequences that flow from that. Being faced with a ten year period of visa renewals and costs takes a heavy emotional toll. The relationship dynamics of the family are also affected, with the foreign national family member feeling and actually being dependent on the sponsor for a very protracted period. More concretely, employers are more reluctant to take on or to invest in staff with a short term visa of two and a half years compared to one with five years or with permanent status. Migrants often find they are channeled into low skill and low income jobs, and the circumstances of the ten year route to settlement serve to reinforce this.

Deterrent effect

The combination of uncertainty as to outcome and the very high stakes create a powerful disincentive to applying at all. This appears to be intentional.

The policy outcome sought from the use of these tests is to prevent or deter migration or to facilitate departure for those already present. While there are few if any public statements to this effect, logically the only way this can be achieved is by dissuading mixed status families from forming in the first place or, if they do form, to prevent or deter them from settling in the United Kingdom.

The means by which the policy end is achieved is both morally questionable and also incredibly naive.

Politicians have no place intruding into the private and family lives of citizens in this way. The reality is that mixed status families will and do form. When they do, the policy of manufacturing both risk and costs for those families imposes a punishing social and economic effect. This affects not only the adults but also the children. The family will have less resources and experience more pressure than a comparable family and it is not unreasonable to suppose that family break-up becomes more probable.

Some mixed status families may be deterred from relocating to the United Kingdom by these risks and costs. While this outcome is consistent with government policy to reduce net migration, it might be questioned whether it is appropriate for a government to be erecting barriers to its own citizens living with their families in their country of nationality.

Some mixed status families may decide the risks and costs are worthwhile. Unless they have access to considerable cash savings, the families will normally have to separate for a period of at least one year in order to relocate from abroad. This period consists of the minimum time it takes to build up a record of six months of employment plus the waiting time for family visa applications in 2022.

Where the family does not satisfy the norms and expectations of the immigration rules, the application may be refused or the applicant may be placed on the ten year route to settlement. Either of these outcomes imposes considerable financial and emotional costs which are borne by the family as a whole. The family will usually eventually achieve settlement — which means that the original policy aim is defeated — but will be financially poorer, emotionally scarred and socially excluded by the experience.


The rules imparting positive discretion appear humane and flexible to a person unfamiliar with how they operate in practice, a group which includes politicians, journalists, policy makers, scholars and members of the public. In this way, positive discretion distracts from and excuses the fact that many families cannot qualify for lawful status under highly restrictive ‘normal’ immigration requirements.

The exceptional circumstance rules must be seen in their proper context. They provide very limited and unpredictable exceptions from immigration rules which are highly exclusionary in nature. We see this being deployed as an instrument of immigration policy in the family immigration rules.

Multiple layers of risk and cost are manufactured for certain migrant families. The rules may in some cases fulfil their purpose of literally excluding some families or family members and preventing them settling in the United Kingdom. Some families may decide that an application will not be made at all. Others may apply and be refused.

Where a family applies despite the disincentives and the application is granted, the rules operate to impose costs which exclude that family from the potential social and economic benefits of residence in the United Kingdom. The financial costs are far higher for a family that will often already be disadvantaged (this is why the family has to rely on the discretionary rule in the first place) because of the number of applications that must be made, the longer period for which the health surcharge must be paid and the additional legal costs. The insecurity of status may also impose indirect financial costs in the form of lost earnings because it is harder to find highly paid or highly skilled work with a short term visa. All of this, combined with the pressure on family dynamics imposed by prolonged dependency, the uncertainty, the time and energy absorbed, the intrusive nature of the process and the stress, imposes additional emotional costs.

By design, the family immigration rules impose additional disadvantages on an already marginalised and precarious group.

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Colin Yeo

Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder of the Free Movement immigration law website.