Family Reunification and recognition of a family life is a cornerstone for immigration Law in many countries. Many countries recognize the need for migration of family members to join another family member in a country. This article considers how children fit into this family life and how treatment of a child’s family right differs between the United Kingdom and the United State of America.
The immigration system provides the ability to reunite families from across the globe. U.S. citizens or permanent residents may sponsor foreign spouses, children and relatives for permanent residence through family-sponsored immigration. Citizens who have reached the age of 21 may sponsor their siblings and parents.
The United Kingdom is a member of the European Union and has adopted many of its laws in respect of Human Rights. One of the key rights for immigration law is the Human right to family life and the right to a private life.
Enshrined in these rights is the recognition of the rights of family member to live together to continue or foster their family life and is the criterion for family based immigration. In the UK, Citizens as well as those with permanent and temporary residency have a right to sponsor their spouse and children to the UK. This right is not absolute and is balanced with the right of the country to maintain immigration control. Unlike the USA however, there is no rights for Citizens to sponsor their parents to the UK expect those parents who are wholly dependent on the citizen.
Children & Immigration (Comparing United Kingdom & United States )
Children are the heritage of our society; they are the tomorrow’s future. How we treat and develop our children plays an important role on the kind of society we have in the future, in terms of Social Culture, Economics, Technology etc. So why are they being ignored in the application of some immigration rules. The way in which the U.S. and the UK treat the rights of children when it comes to enforcement of immigration control differs greatly in law and in application.
The United Kingdom
Since 1983, not all children born in the UK are automatically British Citizen. The nationality of a child at birth is dependent on the immigration status of the child’s parents at the time of birth. However children can be registered as British Citizens if they spend the first 10years of their life in the UK regardless of the status of their parents.
Consideration of Children in Immigration decisions.
Section 55 of the Borders, Citizenship and Immigration Act 2009 places a duty on the Secretary of State to make arrangements for ensuring that immigration, asylum, nationality and customs Functions are discharged having regard to the need to safeguard and promote the welfare of children in the UK.
Article 8 of the Human Right Act also required the Secretary of State to consider the right to a family life and the right to a private life. These rights are also applicable to children and their families.
It has been reconfirmed in several UK judgments that the “best interests” of the children must be a “primary consideration” when taking immigration control actions against families with children. These were not limited to children who are citizens of the United Kingdom.
Thus where a family is in the UK legally or illegally and they have a child in that family who has resided in the UK for at least 7 years and remains under the age of 18. Both Section 55 and Article 8 play an important role when it comes to the refusal of an application for residency or the intention to remove or deport members of the family from the UK.
Previously the UK had what was called the 7year concession whereby such a family would be entitled to make an application for permanent residence in the UK based on the presence of a child of the family in the UK for over 7years. This rule was abolished as it was thought be disproportionality advantageous to illegal immigrants especially when there was no rule in the UK which would permit the parent of a British child to stay in the UK by virtue of the nationality of their child.
However, the 7 year rule was reintroduced on the 9th of July 2012; the changes also extended rights to parents of British Citizens. So for example if a mother who is illegal in the UK gives birth to a child in the UK who has a British father, that child is British and the UK would need to consider the interest of that child before it can remove the mother from the UK. It is considered that a British Child has the right to be resident and grow up in the UK, this essentially makes the removal of that child’s mother difficult if not impossible, hence the mother is likely to be granted permission to remain in the UK which enable her reside and work in the country legally as the primary caregiver for her child. This often leads to permanent residency.
Those over the age of 18 but have lived a long time in the UK
The current UK rules provides that person aged between 18 and 25 and who have spent at least half of their lives in the UK can apply to remain in the UK under the Principles of Article 8 private life.
Those outside that age group would need to demonstrate 20 years (Formerly 14years) continuous residence in the UK in order to qualify for leave to remain in the UK, if they can prove they have no social, cultural and family ties to their Country of origin.
The UK rules address some important social issues concerning children.
- In today’s society a child should not be punished for the wrong deeds of its parents. When the parent take the steps to enter a country illegally or breach the terms of their visa, the young child or unborn child of the family has no say in the matter. When that child then grows up in the only society it knows it would be unfair and unduly harsh to uproot that child from the society to place that child in a new society where the culture and sometimes the language is completely alien to the child. Hence the UK paves a way for that child to be able to continue his/her life in the environment which he or she grew
- Several research have shown that a child develops better with a stable upbringing, especially when the child is being raised by its natural father and mother. Therefore to intentionally separate a child from either or both parents for the sole purpose of maintaining immigration control is to intentionally deprive that child the required stability for development which may lead to under achievement or a life of crime or sometimes medical illness such as depression.
The United States of America
In the U.S. unlike the UK every person born on the U.S soil is an American Citizen regardless of the immigration status of its parents. Every American Citizen is entitled to the American Dream.
The American Dream which is a notion rooted in the United States Declaration of Independence is best described in the words of James Truslow Adams in 1931, “life should be better and richer and fuller for everyone, with opportunity for each according to ability or achievement” regardless of social class or circumstances of birth.
Implicit in the American dream is the notion of freedom and that no one should be illegally deprived of the right and freedom to pursue happiness and success.
Citizen children of illegal Immigrants
The children of illegal immigrants have a relatively tough time in the USA unlike their British counterparts, there are no in country routes for the parents to regularize their status within the USA.
Though the US have provisions in the rules that permit a child to sponsor the parent for permanent residency which is considered a great privilege, that child can only sponsor the parent once the child reaches the age of 21.
The problem however is that under the current law, those individuals who entered illegally may not adjust their status in the country. However, leaving the United States triggers a ban on entering the U.S.
If the parent was present in the U.S. for between 180–364 days that parent will be subject to a 3 year ban, whilst those parents who exceed 365 days are subject to a ten year ban on entering the U.S.
Non – Citizen Children brought into the US at an early age.
These are children who were brought into the United States when they were at an age that they were unable to make an informed decision about their travels. Some of these children came with their undocumented parents as young as age 1 or under and have lived in the U.S. since then.
Many of these children have siblings who were American born Citizen and are ordinarily eligible to be sponsored by their sibling who have attend the aged of 21, however their current illegal status is a bar to that sponsorship.
Sadly there are no routes for these children to regularize their immigration status in the U.S. and these children are at risk of deportation from the country. Even when they are old enough to marry and marry American Citizen or have American born children, they are unable to regularize their status within the county and if they leave the U.S they will be subject to the 3 or 10year ban described above.
So what has happened to these children’s American Dream or right to a family life?
American born children are entitled to the American Dream. The dream is all about the ability and opportunity to achieve. Many studies over time have shown that a child’s development and consequently the ability to achieve success are dependent on the environment and upbringing of that child. Children often do better when they are brought up by both parents.
Generally Children of illegal immigrants are at a disadvantage because their parents are usually low income earners due to their undocumented status and the parents are usually unaware or unable to tap into state provided resources available to low income earners.
However, what generally shatters the dreams of these children is when deportation or removal proceedings are instigated against the parents.
On Many occasions the parents are detained whilst deportation proceedings are instigated, these generally leads to the children been placed in foster homes, though with the intention to reunify the children with their parents as soon as practicable. However practicability can never occur whilst parents are in detention.
The parents are often deported from the detention centers or prison, these makes reunification with the children impossible at this stage, after all the children who are American Citizens cannot be subject to deportation. Hence many of these children remain in America without their parents and they are placed in foster homes and move from home to home. Life as they know it is gone and there goes their stability.
Applied Research Center reported that between 2009 and mid 2011 Some 46,000 undocumented parents of U.S. citizens had been deported and roughly 5,100 children of immigrants have been put into foster care. Many of these children do not get to see their parents again.
Though many parents try to get their children back, but it often proofs difficult and many are forced to re-enter the U.S. illegally in search of their children and if apprehended they would be subject to criminal charges with possible imprisonment.
Whist it is a duty of the child welfare department to attempt reunification of children with their parents, they have argued successfully in several cases that it is in the child’s best interest to remain in the United States than to allow them to join their parents due to conditions in the parents’ home town. The effect of these is a prevention of the child- parent relationship (especially as the parents are unable to legally visit their children in the U.S.).
Most children brought up in foster homes lack the foundation and stability that allows them to achieve the American dream. Their right to a family life with their parents is obviously breached.
There are also those children who are themselves illegal and have spent all of their life’s in the U.S., some are in their 20’s or 30’s and many of them belief themselves to be Americans. These individuals are subject to deportation. The question is what happens to the private life that they have established in the U.S., how are they able to function in a society alien to them? After all, many of these children did not make the informed decision to enter the U.S. illegal but yet they are being punished and treated harshly by the system.
A scholar student made news recently when the ICE began deportation proceeding against her. She was 22years old, came to the US at age two, had attended all her education in the U.S. and was a top academic achiever.
A temporary Fix for U.S. Children
In recent time U.S. President Barack Obama established two notable policies in an Executive Order.
Firstly an immigrant who has a U.S. citizen spouse, children or parents can apply within the country for a waiver of the 10year ban by proving that their absence will create an extreme hardship for their American families.
Secondly, a policy was introduced to allow certain documented immigrants who were brought to the United States as children under the age of 16 and who remain under 30 years of age the opportunity to apply for a two-year stay that would shield them from deportation. There is also a proposal that they can apply for a two-year work visa (which can be renewed indefinitely)
These policies are a welcome development because they protect children; however a more permanent solution is required and should be written into law as opposed to policies. Many call for an amnesty; however an amnesty is also a temporary fix and does not deal with the issues on a permanent basis and clear process of law is required.
Perhaps another solution to protect children would be an effective control of the boarders to prevent or at least minimize illegal immigration, so that children are not being put in these positions where their lives are being left in limbo through the actions of their parents and the country’s lack of protection for their family and private life.
Author:- Lara Akinlude
About the Author:- The author is a dual qualified attorney in England and Wales, United Kingdom and Licensed to practice in California, United States. Lara has been practicing in the UK for over 10years.
To learn more about the author please visit www.laraakinlude.com , or connect on Facebook & Twitter.
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.