Putting Families at the heart of Family Visa Policy

International and Human Rights Frameworks

1. The United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024 was approved by the Scottish Parliament in December 2023 and received Royal Assent on 16 January 2024. The Act incorporates into Scots law rights and obligations as set out in the United Nations Convention on the Rights of the Child.

2. The Convention includes a number of articles which are directly relevant to the Family Visa route.

• Part 1 Article 3 of the Act - In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
• Part 1 Article 9 of the Act - States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.

3. These provisions appear to directly relate to situations where a family may be separated as a result of the difficulty of complying with the minimum income threshold. The previous UK Government argued that families who are unable to meet the requirements of the minimum income threshold could take the decision to live outwith the UK and therefore any decision for some family members to reside within the UK and for the family to be separated was a decision of the family rather than the authorities.

Human Rights

4. The Universal Declaration of Human Rights states in its article 16(3) that ‘[t]he family is the natural and fundamental group unit of society and is entitled to protection by society and the State’.

5. The Human Rights Act 1998 came into force in October 2000, placing responsibilities on all public organisations, such as the government, councils, hospitals, courts, the police, and other bodies that carry out public functions, to act in a manner that is compatible with the Convention rights.

6. In Scotland, human rights protections are also built into the devolution settlement by the Scotland Act 1998. Legislation passed by the Scottish Parliament is not law if it is incompatible with the rights defined in the Human Rights Act and Scottish Government Ministers have no power to act in ways that are incompatible with those rights.

7. In considering our response to this consultation the Scottish Government has been mindful of human rights and the rights of the child and considers that these should be at the heart of Family Visa policy.

8. The House of Lords Justice and Home Affairs Committee’s report setting out the findings of their inquiry into family migration rules published in February 2023 considered the relationship between the family migration rules and international legal frameworks. Their report noted that whilst it is a legal requirement to place the best interests of the child as a primary consideration in all legal proceedings this had not been systematically integrated into policy and practice.

The consequences of this are widespread, creating gaps in provision for children and families to be reunited or achieve a secure status. We are puzzled by the contradiction between the Home Secretary taking the welfare of children “incredibly seriously” and the large number of children precluded by the Immigration Rules from growing up with one of their parents. When this affects British children, it undermines the value of their British citizenship.^[8]