How current UK immigration rules are failing cross-border South Asian couples and families

(Representational image: David Dilbert via Unsplash)

The communal clash in Leicester has led to a long list of articles and reports seeking to unpack its causes and implications. Clips on social media of people marching, chanting slogans, vandalising properties reveal how the legacy of mistrust and hate in South Asia can be grafted on foreign soil.

But such fracas only serve to obscure the heavy-handedness of the UK Home Office in dealing with immigration cases involving families from South Asia. Deploying terms like effective immigration control, larger public interest, protecting the NHS (National Health Service), couples have been broken, siblings have been separated, and families have been financially ruined.

It is beyond the remit of this piece to give a comprehensive picture of the extent of frustration and helplessness that individuals and families suffer in pursuing applications to be united with their loved ones or prevent removal from Britain. Some case details and judgments accessed by this writer reveal the rather inhumane way in which the Home Office dealt with them. These stories of fear, anguish, and dejection are played out in detention centres, immigration tribunals, solicitors’ offices, and long-distance WhatsApp calls.

In February 2022, a BBC investigation found that the evidence Home Office used to deport thousands of people from Britain on allegations of cheating in the mandatory English-language proficiency test (TOEIC) was based on seriously flawed data. Till date over 10,000 people have been deported/forced to leave the UK after being accused of cheating in the English test by ETS – an international testing organisation – that conducted the test through independent centres. Those lucky enough to stay behind and fight could not operate bank accounts, gain employment or use the NHS.

In several cases, unsuspecting individuals were arrested in dawn raids, and simply deported as many lacked the legal and financial muscle to prevent it. Those who remained behind faced huge legal bills and the uncertainty that came with court cases. Loss of social standing and the awkward situation of explaining why and how the British government would wrongly label their tests as fraudulent was, and in some cases remains, very daunting.

It all began in 2014 when it was revealed that some test centres were running fraudulent exams to ensure people could pass in order to apply for visas. The Home Office ordered a crackdown and asked ETS to provide a list of those who had cheated. It later emerged that this list included people who were wrongly accused, but they still faced the music. A large number of such victims were students but it also included businessmen and professionals, with the majority hailing from India, Bangladesh, and Pakistan. Several politicians say it was part of the hostile environment of the Home Office seeking to reduce immigration numbers.

No doubt, the United Kingdom is a fairly open and plural society, which has embraced and valued migration. But there are also people like the far-right British politician Nigel Farage who said that encouraging diversity and multiculturalism led to the violence in Leicester. The shocking violence in the city, which had not seen such an incident before, was attributed to outsiders by Leicester Mayor, Sir Peter Soulsby, who said: “It does suggest that there are people with other battles to fight who are coming to Leicester to fight them. It’s distressing that they choose to do it in our city. We pride ourselves on good relations between communities.”

Yet, the most important battle that migrant communities in advanced countries have to fight is to seek relative ease of migration and proportionate representation in different walks of life. Making cities like Leicester sites for ideological battlegrounds, which have nothing to do with their economic well-being, seems contrary to the hardworking ethic of migrant families. Besides, such conduct can easily lend itself to members of such communities taking real blows inflicted by the earlier mentioned abstract state principles like “effective migration control”. By virtue of being not in the EU, South Asian-origin individuals and families have historically faced greater hurdles.

In 2008, a couple (husband was from India, while the wife was a Pakistani national) got married and were lawfully residing in the UK till their leave to remain application was refused in 2013. In July 2014, the family was notified by the home office that they would be removed from the UK which would effectively tear them apart. The UK home secretary was proposing that the father and the eldest child (an eight-year-old daughter) were to be removed to India, while the mother and the remaining two children aged 4 and 2 were to be sent to Pakistan. All the children were born in England.

The father, a civil engineer, and the eldest child were nationals of India, the second and third child did not have nationality of either India or Pakistan, while the mother, a graduate, had Pakistani passport. The long period of litigation meant that at the final stage, they were without legal representation as they could not afford it. Before the Upper Tribunal, the case crystallised towards determining whether the mother and the two younger children could be reunited with the father and the eldest child in India. The Upper Tribunal finally in April 2017 ruled that the family should not be removed from the UK. “We have found that the implementation of the Secretary of State’s removal decisions will give rise to fragmentation of the family unit with no identifiable prospect of re-establishing, or family reunification.”

In January 2020, Hirenkumar Bhikhabhai Patel’s deportation to India was given the go-ahead because it was assessed by the courts that it would not be “unduly harsh” on his minor child (seven-year-old son) holding a British passport to be separated from him. Patel was convicted of money laundering and was sentenced to 3.5 years imprisonment. Patel’s wife and child were British citizens and it was concluded that “even though it is in his best interest to be with both parents in the UK, it would not be unduly harsh for the child to relocate to India nor unduly harsh for him to remain in the UK.”

If Patel had the stain of money laundering conviction, there are innumerable examples of individuals with no criminal record facing opposition from the home office to unite with their loved ones. In January 2020, Amit Mehta, based in India, made a human rights claim to join his wife and children in the UK, which was refused in March 2020. He appealed to the first-tier tribunal where he was successful, but the home office did not relent and went for an appeal.

Mehta and his wife had married in 2008, but had separated, although they kept in touch. His wife was an Indian citizen, and had permission to live in the UK. They had two children – the younger one was a boy who was a British citizen and lived with the mother, and the elder child (a daughter) was an Indian citizen and lived with the father. The first tier tribunal noted: “I find that the best interests of the Appellant’s son (and also his daughter) are to grow up in the United Kingdom with both parents available in person. In particular, the continuation of parenting by videocall is damaging to the children’s emotional development.” But the home secretary sought to appeal this in the Upper Tribunal where it was finally dismissed in January 2022, thus ending the two-year ordeal of the Mehtas.

Unfortunately, cases like these never get traction on social media or news websites unless it involves celebrities. But such cases represent the real structural battle that migrant communities face, never mind the senseless occurrences in Leicester.