Migrants' Rights Network/Flickr. (CC 2.0 by-nc)
The triggering of Article 50 on 29 March did little to dispel the uncertainty around EU nationals’ status within the UK. As stories of proliferate of long term UK residents subject to deportation orders and those with family ties blocked from returning to live and care for their loved ones, it is pertinent to examine how Brexit may reshape the right to family life in Britain as negotiations progress. Doubt remains as to what types of rights EU nationals will have access to and how this will affect existing family forms, intimacies, future relationships and caring responsibilities – especially when such responsibilities stretch beyond UK borders.
Family visa regimes provide one powerful way for the state to articulate what a family can and should be.
It is possible that even in the event of an EU national residing in the UK gaining a right to remain, their EU/non-EU dependents, partners, and children could become subject to British family/partner migration law. This could equalise EU nationals with non-EU nationals and subject them to the same stringent, intrusive and highly exclusionary socio-economic regulations that make up the Home Office’s approach to non-EU family migration (as is the case now with UK and EU citizens applying for visas for non-EU partners, spouses, children and dependents).
In exploring how British law would extend over EU nationals – and those who chose to become naturalised citizens – further concerns are raised about the broader ways in which intimate relationships are monitored and regulated by the British state. This particularly regards how intimacies are categorised into ‘non-genuine’/ ‘genuine’ familial forms, and the ways in which this categorisation hardens the existing racialised and sexualised control of the state over citizen and migrants lives alike. Whilst British politicians, and conservative politicians in particular, often promise a commitment to uphold and protect ‘family values’, it should be easy to recognise that this rests on an extremely restrictive and exclusory model of what relationships, dependencies, and intimacies count as ‘family’ and the type of violent everyday exclusions that this mandates.
Intimacy in the time of Brexit
Family visa regimes provide one powerful way for the state to articulate what a family can and should be. Intersected as they are by gendered, racialised, sexualised and classed ideas of the family form, visas provide a way for state authorities to regulate the forms of intimacy that can take place and be sustained. Historically in the UK restrictions have often fixated on the mobility of people from former colonies where racist and orientalist ideas have dictated who is allowed to migrate for family life. However, even in a notoriously conservative area of law, the rules for the UK’s ‘family migration visa’ for non-EU partners/spouses/children or EU and British citizens alike are extremely restrictive.
So what are the existing rules regarding EU nationals residing in the UK? And how does this compare to non-EU nationals? This should give us an idea of the type of terrain that EU citizens living in the UK will potentially have to navigate and what this tells us about politics of family and immigration more broadly.
Whilst freedom of movement lasts, there remain limited restrictions on family members with EU citizenship residing for work, care, or ‘family life’ with partners or dependents in the UK. EU citizens are still subject to British immigration law with regard to non-EU partners and dependents (the rules of which I outline below). But importantly, if they reside in another EU state for over two years together (or travel as a family to the UK after being domiciled) they become subject to EU law which gives a far broader interpretation of ‘family’. As EU law applies in the UK to EU citizens, this provides opportunities to navigate the more restrictive dimension of the British immigration law (and accordingly other EU states with similarly restrictive regimes).
It’s a different story for non-EU family migrants. Since 2012, to qualify for the family migration visa a couple – where one person is from outside the EU - must be earning at least £18,600 per year (rising to £22,400 with one child) to apply to temporarily settle together in the UK (or show evidence of £62,600 of cash savings). The potential earning power of a non-EU partner is not taken into account, the declared work must be based in the UK, and the salary must be continuous for six months prior to the application date. This is applied regardless of whether the non-EU national already resides in the UK or not.
By becoming a ‘good worker’ in the eyes of the state one also unlocks the right to have intimate relations with non-EU subjects.
Migrant partners must also prove a ‘good’ knowledge of English (CEFR level A1) and the couple must provide evidence of a ‘sustained’ and ‘genuine’ relationship. Visas last 2.5 years and must be renewed until an application for citizenship or leave to remain becomes possible (5-10 years depending on the route). ‘Family’ here is almost entirely defined as a nuclear family, and dependents over the age of 18 cannot settle in the UK except under exceptional circumstances. According to the Migrant Rights Network such criteria currently excludes 47% of British citizens from the right to live with, marry/partner, raise children with a non-EU person.
If freedom of movement is curtailed as a result of Brexit, EU nationals living in the UK will likely be applying for more family migration visas in order to have their partners and children join them. It is also likely that an increasing number of these applications will be denied, a shift that will reflect the broader pattern we have seen over the past five years.
What forms of inclusion/exclusion does the family migration visa create?
The coalition government’s rationale for introducing a financial requirement into the family migration visa was to ‘protect’ the British welfare state from those without the means to ‘sustain themselves’. Because the requirement is set 10% above the minimal wage, this primarily affects lower paid workers, students, those on temporary contracts, seasonal workers, those on benefits, and the unemployed. In other words, it appears that by becoming a ‘good worker’ in the eyes of the state one also unlocks the right to have intimate relations with non-EU subjects. As a form of class-ist exclusion, this denies the possibility of transnational intimacy to those without the wealth to access rights.
But the financial requirement is not the only impediment that applicants face. Cultural assumptions about what a family should be are central to the British family visa, which polices who can be intimate with whom on the specific terms of a ‘genuine’ relationship. For instance, dependents who may be included as family under EU law would be excluded through this move (such as elderly relatives or extended family), having a highly gendered impact on the character of the (in)formal care sector.
The current visa regulations also emerged as an attempt to regulate ‘sham marriages’ as a route to settlement. Here we see the rehearsal of racialised ideas about the ‘types’ of people who migrate for family reasons. To wit, in the lead up to the implementation of the family migration visa it was expected that such regulations would specifically curtail immigration from Pakistan and Bangladesh (the top country of settlement through this route).
Whilst the character of exclusion by country has been more varied, such racialised ideas are imprinted in the visa application itself, with a particular focus on the need for applicants to prove prior cohabitation, shared financial responsibilities, and a common language – but also of course speak English – as evidence of a ‘genuine’ and ‘sustaining’ relationship. It remains to be seen what tropes regarding ‘proper’ relationships and family would be folded into the procedure with the inclusion of EU nationals.
In policing intimacy the visa equally reproduces assumptions regarding partnerships as heteronormative – that is organised around marriage/civil partnerships and the potential of childrearing. This has been particularly highlighted in the difficulty gay and lesbian couples have had in proving cohabitation and evidencing a ‘genuine’ and sustaining relationship on the British state’s terms.
The inclusion of gay couples through the visa is equally premised on replicating an ideal type of ‘family’ household and form of domesticity (such as getting married or holding a civil partnership). In a recent Supreme Court decision, the right of the British state to ban people from settling in the UK through the family/partner visa was upheld; however the exception was given where the welfare of a child is put at risk. Such limited victories against the current regime are done so on the basis of a specific model of heteronormative ‘family life’ which reinforces limited ideas about what intimacies count as ‘genuine’.
What Brexit holds for the future of transnational family life, care, and dependency is the further incursion of the British state into intimate spaces and relations. That is, further interference into the questions of who can be intimate with whom and on what terms which intimacy can take place. This promotes historical ideals of the heteronormative family of a common nationality, and exceptions to these ideals are tolerated only in the upper echelons of the class structure. Circulating around this ideal are other forms of ‘family’, which are treated as best inferior and at worst perverse and risky.
Whilst the inclusion of EU nationals into this regime should be resisted and subject to high levels of scrutiny, it is vital that we remain attuned to how certain parts of the British population have always already been subject to extremely strict regulations on family migration – often shaped by (post)colonial anxieties and prejudices regarding who constitutes a ‘genuine’ spouse or partner. On these terms, concern over the loss of EU national rights should not be our starting point but part of a broader critique of the ways that the British states sanctions and excludes forms of ‘family life’ more generally.
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