Introduction

Moving from education to work to family is a common migration development process as well as a normal life stage for most people. For millions, joining family members is a major motivation for migration. Outside of asylum seeking and irregular entry, as already mentioned in the previous chapter, only highly paid immigrants (educated or skilled) have the right to bring in family members at the time of their arrival or after a specific period. Lower-paid (or so called lower-skilled) migrants cannot usually bring in family members. Thus, controlling the family space is a means of separating productive and non-productive long-term residents. As we have seen in the previous chapter, the worker and their work are ordinarily treated as distinct from other human aspects, such as the need to be with their loved ones. Migration usually remains temporary if families cannot join the primary migrant. Workers are likely to return to their families after their work contribution unless they make new associations in the locus of their work. The ordered and bordered workplace is thus a critical unit of migration control which spills over into family life. The family unit is also a zone of control as it is the potential site of the production of future citizenry. Controlling family migration (or any of the earlier stages) and any associated reproduction means that future citizenry is not of migrant descent and does not expand through migrant family reproduction. In that sense, migration control is largely about demographic control.

The bordering of families and their treatment reveals much about societies and their sense of who belongs. Some family members may be accepted as close family (for example, children and parents), whereas others are considered too distant in relationship (for example, uncles, aunts or cousins), or some may be close but are excluded as they may be considered likely to take up national resources (for example, aged parents). Although families are often constituted solely of adults, the presence of children offers additional critical evidence in law as to the formation of a specific family unit. Children also migrate on their own from conflict-ridden areas. The manner in which children who migrate are treated gives great insight into host societies and their attitudes towards human rights. Migrants as children have the maximum potential to socialise and become new citizens quite rapidly. For children, their innocence as well as their evolving capacities and potential for future contributions places them outside of the usual calculations of deservingness. A state approach that excludes foreign-born children or reduces access to citizenship for children born to migrants on host territory therefore demonstrates a deep-rooted unwillingness to accept ‘others’ as part of the nation state. For instance, in 2018 the Trump administration started a zero-tolerance policy for irregular entries of migrant families. Many families moved because of instability of the economy and politics in that region (Peri and Zaiour 2023; US Department of Justice 2018). Parents travelling with their children from these conflict areas were criminally prosecuted and separated from their children. This was the first time a ‘zero-tolerance’ policy resulted in immediate separation of parents travelling with children. Children were kept in horrible conditions, including cage-like enclosures (Stumpf 2023). Nearly 3,000 children were separated from their parents until 20 June 2018, when Trump signed an executive order halting family separation because of public outrage over the conditions of the separated children (Human Rights Watch 2018). Some of the children were separated for years, and despite official discontinuation of the practice of family separation, reports state that unofficially the practice of detaining children separately continues (Human Rights Watch 2019a, 2019b).

Asylum-seeking children unaccompanied by family members in the UK are often housed in unsafe accommodation such as hotels, with adults not related to them. The Independent Chief Inspector of Borders and Immigration has reported that children’s voices are often not heard concerning their welfare (Neal 2023). Hundreds of children go missing, as criminals abduct them from these hotels.¹ The emotional well-being of children as well as their physical safety can be compromised in myriad ways. This can even be in the guise of access to play areas or activities that children engage in while in bordered areas such as asylum centres. One specific instance illustrates how traumatic these activities can be. Some children awaiting asylum were asked by adults in charge to play a game to guess who would be in foster care next (Kleiderman 2024). This was a cruel game which preyed on children’s anxieties about their future. The uncertainty about legal status even leads young people to take their own lives (Mental Health Foundation 2024). Yet children should be automatically protected and supported by the law, even in the face of regulations against illegal entry or residence in sovereign states.

The family is carefully controlled as a border zone despite being the most private of spaces. Dehumanising treatment of children and issues of family separation may appear to operate at a micro-level and behind private walls, but in reality the migrant child and family are laboratories for bordering practices. As we have seen in previous chapters, bordering practices are rooted in policies of empire, continental bordering, as well as national immigration law. This chapter therefore enters into the microcosm of human life in its most private sphere and examines bordering through law within the confines of the home and in the family space. While primary migration remains largely the domain of male workers, restricting family members who migrate has a greater impact on women and their ability to move. The gendered dimension is however not limited to women and is not limited to non-citizens. Even citizens have restrictions on their right to bring in foreign family members, and this is where the class dimension becomes most apparent, as only high-earning citizens are able to bring in foreign family members. The racial aspects of bordering families become less visible when mixed with other motivations. Yet it is apparent when one examines policies such as ancestry visas for White Australians (a visa that is available to citizens from Commonwealth countries, such as Australia, who have a UK-born grandparent, so these are more likely to be White Australians) or virginity testing for South Asian women seeking to join their partners in the UK (examined below).

Anxiety about the migrant family

The migrant family that brings foreign family members into the fold of a nation state via its citizen status comes under heightened immigration scrutiny. As noted, this is particularly gendered as regards the control of women and their relationships. Controlling the sexuality of women and their reproductive powers is usually adopted as key to demographic control. For example, by the Naturalisation Act of 1870 a British woman who married an alien became an alien and lost all rights and privileges of British nationality (Baldwin 2014). Yet foreign women marrying British men became part of British citizenry. This duality captured in law treats women as simply extensions of the personhoods of their husbands. Similarly, the 1914 British Nationality and Status of Aliens (BNSA) Act stated that ‘the wife of a British subject shall be deemed to be a British subject, and the wife of an alien shall be deemed to be an alien’. Foreign men were seen as threats or competition for British labour, so they were not granted British nationality by marriage. Foreign brides automatically gained their British husband’s nationality. Many colonial subject women would become British in this manner.

This approach was consistent with the political logic of the day: women did not have separate votes, as their interests were supposed to be aligned with (and identical to) their male relations (fathers or husbands). Women did not get drafted for service in the armed forces. They had no manifestation of citizenship separate from their male relations. This continued in regard to family relations until 1948. Until then, British women marrying a foreigner automatically lost their citizenship. It is only after 1948 that women in the United Kingdom were finally granted the right to their own nationality regardless of their marital status. However, where once the concerns were focussed on relationships between White female British subjects and racialised men in the colonies, by the mid-twentieth century the focus had shifted to men from the ‘new Commonwealth’ migrating to the UK. Qualms about migration were gendered and racialised, with family migration policies built upon the suspicion that men (especially from sub-Saharan Africa and the Indian sub-continent) immigrating as husbands were economic migrants or security threats in disguise (Wray 2011).

A prominent case in point is that of Abdulaziz, Cabales and Balkandali v the United Kingdom, 15/1983/71/107-109, Council of Europe: European Court of Human Rights, 24 April 1985, where three lawfully and permanently settled residents of the UK challenged the government’s refusal to permit their husbands to join or remain with them on the basis of the 1980 immigration rules in force at the time. The rules applied stricter conditions for the granting of permission for husbands to join their wives than vice versa. These conditions did not apply to the wives of male permanent residents. The court found that Article 8 encompassed the right to establish one’s home in the state of one’s lawful residence, and that being forced to either move abroad or be separated from one’s spouse was inconsistent with this principle. On this basis the applicants claimed that, as a result of unjustified differences of treatment in securing the right to respect for their family life, based on sex, race and, in the case of Mrs Balkandali, birth, they had been victims of a violation of Article 14 of the ECHR, taken in conjunction with Article 8 of the ECHR.

The applicants claimed there was no objective and reasonable justification for the difference in treatment. The government’s claims ignored the modern role of women and the fact that men may be self-employed and create rather than seek jobs, as in the case of Mr Balkandali. The male foreign partners were considered a likely threat to public order through presumptions of masculinity and lack of access to the labour market. The court agreed that Article 14 taken together with Article 8 ECHR had been violated by reason of discrimination against each of the applicants on the ground of sex. Yet the case demonstrates how immigration laws and rules commonly presume male migrants will either become job seekers or, in the alternative, breach the social order because of violent behaviour. In this manner gender stereotyping continues unless expressly challenged.

Culture of disbelief: virginity testing

These gendered perceptions nestle within the wider frames of immigration control often based on cultural presumptions. For instance, suspicion regarding the validity of South Asian spousal relationships led to virginity testing of South Asian women to determine whether or not they were married (a matter presumed to be co-related for South Asian women) (Parekh and Datta 2023). Under the Immigration Act 1971, women joining their fiancés in the UK who were to be married within three months of entering did not have to get visas; however, wives joining their husbands would have to wait for long periods in order to get certificates for entry as spouses. The UK government started suspecting that women were claiming to be unmarried to avoid waiting for this process. In order to determine if the women were actually married or not there was virginity testing of women suspected to be wives. The idea was that if they were not virgins, they were wives, thereby presuming no South Asian woman ever engaged in pre-marital sex. The practice of virginity testing was not acknowledged by the UK government but was reported first in 1979 by The Guardian. It highlighted the story of a thirty-five-year-old teacher, ‘Mrs K’, who had to undergo virginity testing after arriving at Heathrow.² She had asserted that she was unmarried and had come to meet her fiancé, who was a British resident of Indian descent, but this had not been believed and the immigration officer suspected she was married. The concept of virginity is a social construct and not something that can be medically proved in confirming status, yet Mrs K was referred for virginity testing by the immigration officer. Mrs K had asked for a female doctor and a gown, but neither was provided. Her examination was conducted by a male doctor, and she had to disrobe completely without a gown. Prior to the test she was given a consent form to sign, and she signed it for fear of being deported. The incident created outrage once it became public and led to the Home Office asking all immigration officers not to test for sexual relations or childbirth for any immigration purposes. While India approached the United Nations Human Rights Commission (UNHRC) in Geneva and argued that this was a case of racial discrimination against Indians, it was eventually resolved through bilateral discussions rather than any findings or determinations (Whitehead 2023). The UK government sent a letter of regret to the High Commission of India assuring them that this practice would never recur but there was no formal acknowledgement about the extent of this practice and how many had been affected. Ultimately the issue just dissipated as a mere concern, but it left behind a clear track record of how women are treated in a specific racialised manner for immigration purposes. This distrust of intimate family relations of migrants is also expressed in other ways, such as the manner in which migrants’ marriages are viewed with suspicion and closely scrutinised for fraudulent behaviour.

Culture of disbelief: sham marriages and non-marriages

Virginity testing concerned the purpose of a visit rather than questioning the validity of a relationship, but the culture of disbelief penetrates deeper with the questioning of the genuineness of migrants’ relationships. Charsley and Benson (2012) write that post-colonial South Asians in Britain are frequently suspected of having ‘arranged’, ‘forced’ and ‘sham’ marriages. These views inform the present-day UK family migration visa which came into being in 2012 and has a focus on evidence of a ‘genuine’ and ‘subsisting’ relationship as the basis for an applicant to secure a visa alongside concerns of integration such as meeting language requirements and financial viability to reduce the risk of welfare dependence. The ‘genuineness’ of the relationship can be evidenced with marriage or civil partnership certificates, letters written by friends/family, pictures and videos, (auto)biographical narratives and portfolios of a couple’s life together, alongside the evidence of biological children (if any), joint utility bills, proofs of residence together or other such evidence of a joint life.

‘Genuineness’ can be viewed in juxtaposition to the kind of relationships which result in sham marriages (or marriages of convenience) and sham civil partnerships. In these relationships the marriage or civil partnership is only entered into for avoiding immigration control. Since 1999, Sections 24 and 24A of the Immigration and Asylum Act 1999 (consolidated by the 2014 Immigration Act) place a duty on registration officials across the UK to report suspected sham marriages and civil partnerships to the Home Office. Immigration officials also work in close cooperation with the police (since Operation Nexus in 2012) and are often based in police stations. There are concerns about how the police can effectively support communities if immigration monitoring is part of their work portfolio.

The genuineness of South Asian marriages is specifically questioned in the instance of arranged marriages which are assumed to be forced marriages. There are also concerns that marriages not performed according to Christian rites are disbelieved by officers and treated as non-marriages (that is, not legally performed as per the Marriage Act 1949 in England and Wales or not meeting requirements for being recognised as legally binding in the jurisdictions where performed, if outside of England and Wales). Naqvi (2023) has demonstrated that non-marriage is applied in ways that target minoritised couples’ and communities’ marriage practices. Non-marriages can be a catch-all category for all kinds of suspect intimate relationships, for example, sham marriages can be considered non-marriages (A Local Authority v SY, [2013] EWHC 3485, para. 50) and forced marriages can also be declared as non-marriages (B v I (Forced Marriage), 2009).³

The requirement of evidence of genuineness of a subsisting relationship for a family visa purpose is arduous, as it means that couples must keep proving the nature of their relationship for the entire duration of the visa. Naturalisation is a long period (often five to ten years) and the visa normally lasts 2.5 years each time it is extended, so it is a prolonged period of proving a relationship through state-recognised metrics (such as joint economic, residential and/or child-rearing responsibilities). Relationship breakdowns can be directly reported to the Home Office through an online reporting tool but fear of the implications of this on permission to stay in the country can create additional pressures to continue in broken relationships. While partners in abusive relationships with settled migrants/citizens in the UK can apply for indefinite leave to remain based on the abuse, there are still concerns that people may stay in abusive relationships for fear of losing the right to stay in the country.⁴ This can be for a number of reasons, such as lacking evidence of the domestic abuse, or they travelled to their home country to seek support and now cannot re-enter, or that they are not fully able to separate from their partner despite the abuse.

Same-sex couples also have similar requirements but, in their case, there are additional presumptions of non-genuineness. The additional bars for same-sex relationships in migration control are seen in asylum proceedings where asylum seekers have to evidence how they are affected because of their sexual orientation and that their relationships are genuine. This genuineness is one which has to conform with the perceptions of decision makers on what a same-sex relationship should be and how much it is a cause for fear for applicants in the foreign country concerned. The applicants need to show that they need international protection on the basis of their sexual orientation and/or gender identity and need to show that they have a ‘well-founded fear of being persecuted for reasons of […] membership of a particular social group’ (1951 Geneva Convention Relating to the Status of Refugees). Women and lesbians and gay men can form a ‘particular social group’ (Shah and Islam v Secretary of State for the Home Department, House of Lords, 2 A.C. 629, 1999 (HL)).

This means that claimants need to prove that they belong to the particular social groups of lesbian/bisexual/gay/transgender/intersex people. They are mostly disbelieved, and their claims refused. In the past, applicants were asked for deeply private and intimate information but in A (C - 148/13), B (C - 149/13), and C (C - 150/13) v Staatssecretaris van Veiligheid en Justitie, Grand Chamber, Judgment, 2 December 2014 (Court of Justice of EU), the Court of Justice of the EU held that, ‘questions concerning details of the sexual practices of the applicant are contrary to the fundamental rights guaranteed by the Charter and, in particular, to the right to respect for private and family life as affirmed in Article 7 thereof.

In the UK in July 2010 the Supreme Court (in HJ (Iran) and HT (Cameroon) v SSHD [2010] UKSC 31) found that such information also cannot be requested and that asylum seekers cannot be asked to hide their sexual orientation (for reasonable tolerance) and live in such oppressive conditions in their home countries. HJ and HT were homosexual men, from Iran and Cameroon respectively, and in both Iran and Cameroon it is a criminal offence punishable by, inter alia, imprisonment and, in the case of Iran, by the death penalty, for consenting adults to engage in homosexual acts. Yet the Court of Appeal agreed with the Home Office that there was reasonable tolerance (reasonable tolerability test) for homosexuality so long as it was hidden. The Supreme Court allowed the appeal by the asylum seekers holding that the ‘reasonable tolerability’ test applied by the Court of Appeal is contrary to human rights.

There are still many hurdles for same-sex families and asylum seekers. The culture of disbelief is far from wholly overcome but at least these cases have addressed the most egregious violations of human dignity relating to sexuality as a basis for asylum seeking. Asylum overall however is still an area where the basic humanity of asylum seekers is assaulted because of a lack of fair processes and adequate support. I shall return to this theme in the next chapter.

Culture of control: the minimum income requirements

There are restrictions placed on foreign family members in the context of resettlement. For example, with limited exceptions for students in research intensive degrees, international students cannot bring their dependent family members to join them in the UK (2024).⁵ Similarly, workers on the care-worker visa are not allowed to bring in their dependents to the UK (Sumption and Brindle 2024). Present-day language requirements are also barriers for many partners who may be from non-English speaking jurisdictions.

Financial requirements have been added for family members who may be permitted entry. For example, citizens have to meet financial conditions in order to bring in their foreign family. In a new requirement introduced in July 2012 for the family visa, the family unit has to demonstrate financial independence from the state welfare pot through meeting certain minimum income requirements (MIR). The rule introduced a requirement for the UK sponsor to earn a minimum gross income of £18,600, even more if children were also involved. This has prevented many British citizens from being able to settle with their partners in the UK. The MIR is not just about being able to adequately maintain one’s family but is a specific figure which must be met. It has both gendered and racialised effects, as many people who work part-time are women, who often bear the bulk of childcare responsibilities or are minority British citizens in lower-paid jobs (or an intersectionality of both). People who are self-employed or still in education or training may not be able to show they have such resources, especially if they have to show they have this amount as steady savings over time. Indeed, this amount in 2012 was higher than the annual minimum income for many people (about 20–25 per cent of UK citizens) so it is not clear why it was set as a requirement for those with foreign family members, especially as there is no recourse to public funds for family visa holders. However, the MIR has ostensibly been set in order to prevent welfare dependence

The 2012 Rules have been challenged under Article 8 of the ECHR in the recent case of MM (Lebanon) and Others (Appellants) v Secretary of State for the Home Department (Respondent) [2017] UKSC 10. As the minimum income requirement restricted cross-border relationships by denying family reunion, all five appellants in the MM case were not permitted to bring their spouses to the UK because they did not meet the MIR. The Supreme Court decided in the case that the Secretary of State could impose the MIR but would have to specifically consider the best interests of children while assessing the effects of the Rules. Thus, following the case there are new amended rules and guidance stating that decision makers must take into account, as a primary consideration, the best interests of any relevant child. Despite this change, the basic premise behind MIR is still valid and the amount itself continues to rise. In 2024, the amount had been raised to £29,000 (on 11 April 2024) and it is set to rise again to £38,700 in 2025.

It is not just partners and children who are affected by the restrictions placed on foreign family members and their long-term residence in the UK. Income restrictions are also placed on the migration of aged foreign-resident parents. Applicants have to show they have enough money to support their elderly relatives without relying on public funds for at least five years from the date the relative entered the UK as a dependant adult. The family does not just have financial limitations; applicants also have to show that their parents require personal services-based care that cannot be substituted for by non-family members or that they cannot adequately obtain such care in their home countries through suitable hiring of paid services. Only if this further condition is met can a British citizen apply for their overseas-resident adult dependent relative on a family visa which can lead to indefinite leave to remain in the long term. These conditions are applied in a manner that excludes most elderly visitors, as is evident from the very low rate of success for this visa. Applicants are often unable to provide the kind of detailed evidence of the need for care and the inability to obtain such care in the applicant’s home country (freemovement n.d.). Naturalised citizens who have parents in foreign countries are greatly affected by these measures and continue to retain foreignness in the UK through the operation of the law.

By preventing the entry of family members who are not economically active and may require some support the law supports a passive exercise of power. The rights of these family members are simply kept off the agenda as they are unable to enter and seek support. This is the second dimension of power as per Lukes (2021), which manifests through inaction and keeping agendas off the table for discussion and deliberation. The incapability of migrants to care for immediate family members is a silent pain endured by many.

Bordering through denying humanity

As already mentioned, the mission creep of the British immigration regime into asylum provision has shaped migrant vulnerability. The right to seek asylum has been eroded through various measures, such as not allowing people to seek asylum beyond first port of entry into Europe, not allowing family reunification, age assessment of child migrants, denial of the right to work, very little economic support for asylum seekers, together with poor-quality housing and health support which makes their lives difficult. Asylum seekers, who are mostly racialised minorities, are unable to rejoin family members beyond immediate family. Even children who live all their lives in a country can find themselves left without citizenship. It is no longer simply a matter of being an insider or an outsider. Through these restrictive approaches to foreigners with close and intimate links to citizens, borders are reified in private domains. A state of foreignness persists for many, hand in hand with long-term presence, citizenship and the bordering of citizenship.

In the previous chapter we have already discussed the situation of asylum seekers in terms of lack of safe routes, lack of work and treatment as exploited workers in detention. In this chapter, we return to other ways asylum seekers are bordered. As discussed previously, there has been a proliferation of laws intended to make the attaining of asylum and the lives of all those seeking it in the United Kingdom more uncomfortable both in terms of entry and in the area of welfare entitlements. Yet the Limbuela case (cited in Chapter 4) established that asylum seekers have a right to dignity. Does that standard persist? In this chapter we examine the issue of dignity through the lens of asylum seekers with families. As we have seen, asylum seekers have no general right to work in the UK. Does this change with the presence of children in the family?

Section 55 of the Borders, Citizenship and Immigration Act 2009

The UK government previously maintained a reservation to the United Nations Convention on the Rights of the Child (UNCRC) with respect to children subject to immigration control. This meant that the Convention applied to other children in the UK but not to foreign national children when regarding matters of immigration control. However, as of November 2008 this reservation no longer applies. Section 55 of the Borders, Citizenship and Immigration Act 2009 contains a mandatory duty on the Home Office and others making immigration decisions to safeguard and promote the welfare of children in the UK as they carry out their functions. The scope of the duty is broad, meaning that any immigration decision taken within the UK should include a consideration of this duty.

A relevant case for gauging this point is R (Cardona) v Secretary of State for the Home Department [2021] EWHC 2656 (Admin). Mr Cardona, the claimant, was a citizen of Honduras who arrived in the UK on 20 September 2018 with his wife and their daughter, who was then aged twenty-one months, and they claimed asylum. At the time of the hearing date on 27 July 2021, Linden J observed that nearly three years later, that application had yet to be determined, although the court was told that an outcome was expected by 21 September 2021, absent special circumstances. In 2020, Mr Cardona received permission to work, pending the determination of his application for asylum. However, in line with paragraph 360A of the Immigration Rules, that permission was limited to employment in jobs on the Shortage Occupations List (SOL). Mr Cardona did not possess the skills or qualifications which would enable him to take up one of the occupations on the SOL. However, there were other jobs available in the area where he and his family were living, which local employers would be willing to offer him, that he would like to take up in order to help him support his family. Mr Cardona was not permitted to take up such employment for compassionate reasons, despite the duty placed on the Secretary of State to consider children’s welfare in s55 of the Borders, Citizenship and Immigration Act 2009. Hence, Mr Cardona challenged the permission to work and volunteer for asylum seekers of 22 May 2019 (Version 8), as it affected children. He argued that the decision did not give sufficient reasons and/or address the particular considerations of his case and that this was irrational. The court agreed that the wording of Version 8 was indeed defective as it related to children. The presence of children could therefore make a difference, even without a general right to work for asylum seekers. Yet family reunification is a severely restricted right in the UK. Immediate family members include only a partner and children under eighteen, or over eighteen in exceptional circumstances, so others cannot seek reunification. The Home Office guidance states that other dependent relatives such as sisters, brothers, parents, grandparents, uncles and aunts are excluded from the Refugee Family Reunion route. However, the Immigration Rules state that if an applicant does not satisfy the requirements for a partner or child under the Rules, the Home Office decision maker must consider whether there are exceptional circumstances which would make a refusal of the application a breach of Article 8 ECHR. The Home Office guidance further states that the Home Office decision makers must consider whether there are any compelling compassionate grounds which would warrant a grant of leave outside the Immigration Rules.

Unaccompanied children who come to the UK and seek to join their extended families are often unable to do so despite this guidance and Article 8 ECHR. While special consideration for children may be written into the law (for example, through s55 of the Borders, Citizenship and Immigration Act 2009), these often fall short of the required measures for children. Child asylum seekers who arrive unaccompanied by adults often find their best interests are not considered. Legal assessment of their needs and their welfare fall short of the other priorities of the hostile migration and refugee policies (Crawley 2006; Bhabha and Schmidt 2008) as well as austerity measures. Yet, local authorities have duties to support all children ‘in need’ in their area (Part III of the Children Act 1989). The UK Home Office definition of an Unaccompanied Asylum-Seeking Child (UASC) is a person under eighteen, who is applying for asylum in his or her own right and is separated from both parents and not being cared for by an adult who in law or by custom has responsibility to do so. They are considered children first and asylum seekers later. Yet often the children are disbelieved, and their age is assessed through challenging processes. As soon as they turn eighteen the Home Office often seeks to reassess their situation and/or deport them. This is very much in line with the treatment meted out to asylum seekers in general.

Many unaccompanied children are subjected to age assessment if they do not bring evidence of their age. Age assessment involves social workers gathering information from a range of sources. Social workers should use all relevant information, multi-disciplinary expertise and other techniques in the age assessment process.

The difference between a child being assessed as a child or being wrongly assessed as an adult can be the difference between their being able to remain in the UK or facing detention and removal. It is very easy to wrongly assess a child to be an adult, as the assessment process is just two Home Office members of staff assessing age by looking at a person and judging by their appearance and demeanour whether they think that the individual could be a child. The leading case is R (B) v Merton [2003] EWHC 1689 (Admin). The applicant claimed to be seventeen years old. He had no documentation to support his claimed age. He was interviewed by a social worker with the assistance of an interpreter on the phone. The social worker from the local authority, the London Borough of Merton, decided that he was over eighteen. He applied for judicial review of that decision. The court provided guidance on the lawful assessment of age in the event of disputes between the local authority and a UASC. The court found that there was no onus of proof on the applicant to establish their age. Social Services should not simply adopt a decision made by the Home Office but should make its own decision. If this involves an interview then certain safeguards should be followed, such as explaining the purpose of the interview to the young person, providing an interpreter in person, taking notes of the interview, bearing in mind cultural and background differences, providing an opportunity to address or answer any point that the decision maker was making against the applicant, and providing adequate reasons (even if not elaborate reasons). In this case the court decided that the decision that the applicant was not a child was unlawful. Since this case, all UK age assessments have to be ‘Merton compliant’ in order to be lawful. Yet young people on the verge of turning eighteen receive no support and fear detention and deportation. Many of them risk being trafficked, re-trafficked or exploited in the underground economy where they remain hidden in fear of deportation. Adolescents who have some adult features, such as increased facial hair, are subjected to greater scrutiny. Racialisation is inherent to the process of age assessment with Brown and Black young people who lack documents often deemed adults. The Nationality and Borders Act 2022 introduced the concept of ‘scientific methods’ of age assessment. An individual’s refusal to participate in a ‘scientific method’ of age assessment will lead to that individual being viewed by the Home Office as being aged eighteen years or over and therefore able to be deported to a ‘safe country’. Biological methods are invasive and can be especially traumatic for those young people who have already fled conflict (British Association of Social Workers 2023).

If a young person is found to be an adult on arrival, they are assigned a date of birth making them over eighteen and they are dispersed in adult accommodation and treated as adults from that point onwards, but if they are found to be below eighteen they get special consideration as children. Even accompanied children can be highly vulnerable. The separation of young children from their adults became commonplace in the US southern borders because of the criminal prosecution of adults who crossed the border without permission. As mentioned earlier, in 2018, the Trump administration brought in a ‘zero tolerance’ policy for illegal immigration which meant that all those who crossed the border without prior permission could be prosecuted, including those who wanted to seek asylum. Any accompanying children were separated from these adults and placed in care arrangements without family members, including hundreds who were even infants and toddlers under the age of five (Southern Poverty Law Center 2022). Separation in this manner is deeply distressing for the whole family and particularly damaging to children, who suffer long-term consequences for their relationships, mental health, legal cases and finances.

Children held together with their families in detention centres are rarely cared for, with inadequate opportunities to study and play. Individuals can be detained far from their families, transferred between detention centres without notice, or released and re-detained. Visits are hindered by travel costs, distance and child-unfriendly accommodation. Detainees and their families are particularly harmed by lengthy and repeated detention, as well as uncertainty borne from the absence of a timeframe or limit to their detention. Separation may continue even after people are released, due to the allocation of distant housing, electronic tagging or reporting conditions, absence of funds for travel and long-term damage to relationships and mental health brought about by uncertainty and emotional distress.

Even if not in detention, in the UK many families are housed in abysmal conditions while male detainees are often selected for housing in a variety of unsuitable accommodations. As we have seen in previous chapters, off-shoring has become the chosen way forward for dealing with asylum claims, mainly to bring down expenses, but another way to reduce costs has been to use hotels, former prisons or ex-military sites for housing asylum seekers. The conditions there are poor, including low-quality food and an inability to access healthcare or legal advice. Barracks and barges (for example, the Bibby Stockholm as late as January 2025) when used are spaces where asylum seekers feel confined and are unable to meet anyone else. Severe mental health issues are commonplace in these conditions, as are the outbreaks of infectious disease.

Children’s rights: citizenship

Despite the many challenges for foreign family members and asylum seekers the presence of children brings different considerations for their welfare. Yet foreign children, or children of foreigners, often struggle to gain regular status even if they are long-term residents. One barrier for children is the cost of acquiring citizenship. In the UK, a change in law brought about by the British Nationality Act 1981 removed automatic birthright citizenship for children born in the UK (that is, jus soli citizenship). Before 1983, anyone born in the UK automatically acquired British citizenship. After the Act came into force, those born in the UK were only considered British citizens if at least one of their parents were either a British citizen themselves or ‘settled’ in the UK at the time of the child’s birth. While children connected through blood-links in this manner retained eligibility through descent for British citizenship, for others the process is through naturalisation when they are adults or through registration when they are below eighteen.

In the UK, the registration fee is over £1,000 for children who otherwise have full eligibility for British citizenship. This amount is more than it costs to process registration applications, but the Home Office justifies the fees on the grounds that the income generated can be used to cross-subsidise other immigration activities. The Home Office also asserts that British citizenship is a valuable asset for those who obtain it, so the charge is justified. An applicant, O, challenged the fees with the assistance of the organisation PRCBC (Project for the Registration of Children as British Citizens) in court as her family could not afford the fees: R (on the application of The Project for the Registration of Children as British Citizens) v Secretary of State for the Home Department UKSC/2021/0063. O was a child holding Nigerian citizenship, who was born in the UK in 2007 and has lived in the UK ever since. On this basis, O would be entitled to register as a British citizen under section 1(4) of the British Nationality Act 1981, but for her family’s inability to afford the registration fee, set at £1,012. The case went to the UK Supreme Court, which looked into the fees to ascertain whether these act as a barrier for citizenship.

The case raised two key questions for the Supreme Court: (1) whether the fees constituted an unlawful infringement of a common law constitutional right of access to (the rights conferred by) British citizenship and (2) whether the fees nullified a statutory right to become a British citizen and were thus ultra vires. The court decided that the right to citizenship was ‘important’ and the attendant rights ‘significant’ (para 5). However, the court held that the case was ‘not concerned with common law rights which have been recognised as fundamental or constitutional’ (para 33). British citizenship was a statutory right and thus was dependent on the statutory provisions.

This case demonstrates how having an uncodified constitutional structure complicates the determination of fundamental rights and this means statutory rights are not that sacrosanct. The Supreme Court ultimately found the fee regime to be lawful, as the ‘statutory rights to British citizenship’ under the 1981 Act (para 47) were framed as being no more than ‘a statutory procedure for registration by which a person can acquire British citizenship […] subject to conditions specified by Parliament’ (para 43). Those conditions expressly include the payment of a fee, the level of which is to be set by the Secretary of State (pursuant to Section 68 of the Immigration Act 2014), with no statutory requirement to have regard to their affordability. The fees regime was thus found to be lawful.

The decision to charge children more than the actual costs for processing their applications is an example of the commodification of citizenship rights. The PRCBC decision has the impact of placing a high financial barrier on children’s citizenship even when they are British in every sense but for the legal document. Essentially it creates an economic profit for the government from over-pricing British citizenship for children and it also devalues citizenship as an administrative procedure or a commodity that can be sold at a premium to those who already belong. Why should children’s rights be restricted in this manner? The reasons given of administrative budgets and value of citizenship are unlikely to be the only ones for pricing children out. When children become citizens, they gain more security of status, but it provides a way in for their foreign family members who can then remain with them or join them. In the US where birth citizenship exists, children can be perceived as ‘anchor babies’ for foreign families. Huang writes in her article, ‘Anchor Babies, Over-Breeders, and the Population Bomb: The Reemergence of Nativism and Population Control in Anti-Immigration Policies’ that the higher birth rates in the USA from 2006 were associated with the increased number of immigrants (Huang 2008). This then created hostility towards migrant women who were accused of producing ‘anchor babies’.

The term ‘anchor baby’ has entered common usage now because of its use by right-wing activists and media (Ignatow and Williams 2011). It refers to children of migrants/people with short-term presence who become citizens (generally through jus soli) and then confer potential citizenship benefits to their migrant families, presenting this as a problem for society. Yet the pejorative nature of the term is uncalled for when children are accessing the constitutional rights guaranteed by the American constitution with no decision making on their own part. In this manner the confluence of race, gender and sexuality creates a gendered racism for controlling who is really ‘American’ (Chen 2011). The children and women are presented as national security threats, environmental threats and economic drains simply by their presence. Not surprisingly, border detention areas then become similar in nature to prison cells for holding terrorism suspects, and even very young children can be detained in such cells. Even the term ‘terror baby’ can be found to refer to birthright citizen children born to non-citizens (Lugo-Lugo and Bloodsworth-Lugo 2014).

While it is not couched in similar terms in the UK, regulating access to citizenship for children (just as it is about controlling the sexuality of women) is also about regulating long-term demographic changes. It starts with controlling the reproductive capacities of women (especially of women who are not White) and continues with restricting the rights of children. In the UK context such regulation is intertwined with EU law.

In Chapter 3 we analysed the Chen case on jus soli citizenship and derived rights for family members. Here we return to the Chen scenario in the context of child rights. The Chen case was extended by the Zambrano case, which granted third-country national parents the right of residence and work. Mr Ruiz Zambrano, the father, was a Colombian national staying illegally in Belgium together with his two Belgian children who had never left that EU member state. Article 20 TFEU conferred the status of Citizen of the Union on the children. Mr Ruiz Zambrano sought to reside as the parent of EU nationals and obtain a work permit to which, as an illegal immigrant, he was not entitled under Belgian law. The ECJ ruled that the Zambrano parents could rely on the Treaty provisions on EU citizenship to obtain a derivative right of residence as the father of EU national children. The parents were given these rights as their expulsion would take EU citizenship away from their children born in Belgium. This case was a purely internal situation with no EU cross-border movement of the people involved in the case. After stressing that ‘citizenship of the Union is intended to be the fundamental status of nationals of the Member States’, the ECJ ruled, in the key passage of the judgment, that ‘Article 20 TFEU precludes national measures that have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union’. For this point, the ECJ drew on Rottmann, an earlier case on deprivation of citizenship.

As mentioned before, Rottmann was a case about loss of citizenship owing to fraud committed by the citizenship applicant in the application process. While being the subject of judicial investigations in Austria, Rottmann, an Austrian national, moved to Germany in 1995. Two years later, Austria issued an arrest warrant against him. In February 1999, he acquired German nationality by naturalisation, triggering the loss of his Austrian nationality. However, in August 1999, Austria informed Germany of the arrest warrant issued against Rottmann. Taking the view that by withholding that information Rottmann had obtained German nationality by deception, Germany revoked that nationality and, since the original nationality did not revive, Rottmann became stateless. In the key passage of the judgment (para. 42), the ECJ held that

[i]t is clear that the situation of a citizen of the Union who, like the applicant in the main proceedings, is faced with a decision withdrawing his naturalisation, adopted by the authorities of one Member State, and placing him, after he has lost the nationality of another Member State that he originally possessed, in a position capable of causing him to lose the status conferred by Article [20 TFEU] and the rights attaching thereto falls, by reason of its nature and its consequences, within the ambit of [EU] law.

It appears that citizenship of the EU is more important for the ECJ than free movement. This is the foundation for the Zambrano decision but soon the court changed track from Zambrano in subsequent cases. The ‘genuine enjoyment’ protection did not apply to adults being separated from their spouses (McCarthy v Secretary of State for the Home Department, Case C-434/09), or to adults separated from their parents (Ymeraga and others v Ministre du Travail, de l’Emploi et de l’Immigration, Case C-87/12 [2013]), nor to children separated from only one of their parents, whilst the other was able to remain with them (Dereci and others v Bundesministerium für Inneres, Case C-256/11). The exceptional nature of Zambrano is thus because of the presence of children in the family.

This is also true in the British immigration situation when UK courts have looked at Article 8 of the ECHR, the right to respect of one’s private and family life. For example, the ZH case [ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4] focusses on the best interests of a child. Article 3(1) of the UNCRC provides: ‘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’. The best interests principle can be seen as the guiding principle of the entire Convention; it is an umbrella provision prescribing the approach to be taken in all actions concerning children. The Convention does not offer a precise definition of best interests, or an explicit list of factors relevant to best interests. A child’s best interests are likely to change depending on the situation. However, the UNCRC does state that ‘best interests’, broadly speaking, refer to a child’s general well-being, which takes into consideration a wide range of factors. These factors include the views of the child, the need for a safe environment, family and close relationships, and development and identity needs. Some laws, for example the Children Act 1989, and the Borders, Citizenship and Immigration Act 2009, make explicit reference to the best interests of children and therefore require decision makers, tribunals and courts to consider this when reaching decisions.

The UK Supreme Court considered the best interests of the child in a mother’s appeal to the Supreme Court against her removal from the United Kingdom. The main issue was the weight to be given to the best interests of children who are affected by a decision to remove or deport one or both of their parents from the UK. In the Supreme Court decision, Lady Hale held that the best interests of a child must be considered first before going on to consider whether other factors might act as differing considerations – such as the need to maintain immigration control or the parent’s poor immigration history. She further observed that the ‘spirit if not the precise language’ of Article 3(1) had been translated into English law. In para. 44 she writes:

The fact that the mother’s immigration status was precarious when they were conceived may lead to a suspicion that the parents saw this as a way of strengthening her case for being allowed to remain here. But considerations of that kind cannot be held against the children in this assessment. It would be wrong in principle to devalue what was in their best interests by something for which they could in no way be held to be responsible.

Given the clear steer in the judgment as to the primacy of the principle of best interests of the child, the question of whether it is reasonable to expect someone to relocate could only be of second tier importance.

Brexit has created complex issues for children in families who have lived a long time in the UK but have EU connections (Sigona 2019; Welsh 2023). Confusion has arisen around the British government’s own understanding of its citizenship laws, following a judgment by the UK’s High Court in Antoine Lucas Roehrig, R (on the application of) v Secretary of State for the Home Department [2023] EWHC 31 (Admin). For seventeen years, the Home Office deemed EU nationals exercising free movement rights in the UK to be settled and their UK-born children, thus, British. But on 2 October 2000, the Home Office changed the rules. In order to be deemed ‘settled’, EU nationals now had to apply for and be granted indefinite leave to remain. The problem is that many EU nationals did not apply for indefinite leave to remain, simply because they did not need it to enter and reside in the UK. Take, for instance, Antoine Lucas Roehrig, who was born on 20 October 2000, in the UK. His mother is a French national who had lived and worked in the UK under EU law for the five years before he was born. Roehrig claimed he acquired British citizenship at birth by virtue of section 1(1)(b) of the British Nationality Act 1981 because his mother was settled in the UK at the time he was born. The Home Office disputed that his mother met the Act’s criteria for being settled and refused his application for a British passport. On being challenged, the High Court agreed with the Home Office (20 January 2023, in the case of Roehrig v Secretary of State). On an appeal, this was confirmed by the Court of Appeal in (Roehrig) v Secretary of State for the Home Department [2024] EWCA Civ 240. The Supreme Court refused permission to appeal the order. It is unclear how this decision conforms with the best interests of the children as they are left without citizenship. Mere technicalities of the operative date of the law deprives them of their secure status despite their years of presence in this country. They spent their formative years in the UK but are now foreign forever.

Education for children

Not all rights depend on citizenship. Education should be a universal right for children, but in reality, it is not always available to all children. There are gaps in the rights of foreign children who continue to reside in the UK. While the ZH case hammers home the importance of best interests consideration, what is the impact of children’s legal status on specific rights? In this section I shall look at education before moving to healthcare in the next section (in conjunction with access to healthcare for adults as well).

Since 2008, British universities and private schools have had to carry out immigration checks under the Points Based System. If an unaccompanied child enters on a visa, they can only study in the independent school which is their licensed sponsor of their visa. There is a comprehensive set of responsibilities of state-funded schools and their admission authorities (Department for Education 2014a). The admission authorities for state-funded schools (maintained schools and academy schools) must not check the immigration or nationality status of foreign national children as a pre-condition for admission and they must not refuse to admit a child on the basis of their nationality or immigration status nor remove them from the roll on this basis. Schools must not ask to see passports or other immigration information as a condition of admission (this would be a breach of paragraphs 1.9(a) and 2.8 of the school admissions code) (Department for Education 2014b).

In June 2015, the Department for Education (DfE) and the Home Office quietly signed a Memorandum of Understanding under which the DfE was to share the personal details of 1,500 school children a month in order to help identify immigration offenders (Gayle 2016). The data would be drawn from school censuses and include pupils’ names and addresses, and school and attendance records. In September 2016, new regulations came into force adding nationality, country of birth, and proficiency in speaking, reading and writing in English to the data collected in school censuses and collated in the national pupil database. The collection was a compromise won by the DfE to curb stricter proposals from Theresa May. The then Home Secretary wanted teachers to carry out immigration checks and schools to ‘deprioritise’ places for the children of illegal immigrants. The data collection was challenged by the campaign group Against Borders for Children and the human rights charity Liberty when people became aware of it. New guidance on the school census confirms that pupil nationality and country of birth data is ‘no longer required by the department and, as such, it is removed from the school census collection from autumn 2018 onwards’ (Department for Education 2019, 12). Schools ‘must no longer request this information from parents, or retain the data within their system, for purpose of transmitting to the department via the school census’, the guidance states. Now it is the responsibility of parents to check if their child is eligible to study.

In the US the Family Educational Rights and Privacy Act (FERPA) protects the data of undocumented children by making it unlawful to share their immigration status with non-school personnel, which means undocumented status is not reported to immigration officials by schools. Organisations like Immigration Customs Enforcement (ICE) cannot gain access to school data, so children feel sheltered in school especially as per a Supreme Court case Plyler v. Doe 457 U.S. 202 (1982), which held that immigration status has no place in the context of K-12 education. Plyler, issued by the Supreme Court in 1982, held that undocumented immigrant students have a right to public education without any distinctions to be drawn based on their immigration status. Plyler’s holding that immigration status has no place in the school context created not just a legal rule, but a school culture that views assimilation as the primary goal of schools vis-à-vis immigrant students. Assimilation arguments are closely linked to the ‘innocence’ of children. The innocence of children is also a key factor in seeking their protection. Even for adults there is the use of vulnerability and deserving/undeserving migrants as frames for rights, especially in asylum seeking. Should citizenship and long-term residence rights be granted as a reward for good behaviour or based on factual social membership?

Plyler stated that undocumented children cannot be discriminated against by schools. Yet with time, many undocumented children drop out of school, and few make it to higher education. Most of them have arrived at a very young age and suffer from severe well-being concerns and worries about their families. They need to make efforts to regularise their status. There is no clear path for permanent US residence, with options like sponsorship by a relative potentially taking decades to process. However, some young people (popularly referred to as ‘Dreamers’) have obtained protection under the Development, Relief, and Education for Alien Minors Act (DREAM Act) (Rabin 2023). The DREAM Act provided legal status and a pathway to US citizenship for those that met a stringent set of criteria. Although the DREAM Act was first introduced in 2001, it has never been approved by Congress. Legislative reform and the implementation of administrative reform was attempted by President Obama in the form of the Deferred Action for Childhood Arrivals Program (DACA), an executive branch memorandum signed by President Obama in 2012. DACA granted persons who arrived in the US as minors without authorisation a renewable residence permit and travel documents, as well as eligibility for work permits without giving them access to permanent residence and thus eventually to naturalisation (Gonzales, Terriquez and Ruszczyk 2014). Yet it prevented their deportation, so it gave them a right to remain in the US.

DACA was upheld unchanged until its rescission in 2017 by the Department of Homeland Security (DHS) under the Trump administration. The fragility of DACA was due to its being an executive branch memorandum and not legislation by Congress. DACA’s rescission was eventually challenged in the Supreme Court of the United States. DACA was restored after the challenge, but many children fell through the gaps in between. Attempts to pass the DREAM Act occurred once again at the end of 2022 but these were unsuccessful. Meanwhile DACA still continues to be a fragile right, as it has not been approved by Congress and continues to be challenged in the courts time and again. This aggravates the situation of immigrant children arriving from 2017 onwards who cannot experience schools as a place of refuge because of the renewed crackdown on illegal entry and pursuit of undocumented populations.

The university as a site of national security bordering

As mentioned in the previous chapter, the university too has become a site of bordering. A particularly acute situation of bordering is when universities have to report behaviours of students to authorities. In 2003, the UK government established the Counterterrorism Strategy (CONTEST) comprised of four ‘Ps’: Protect, Prepare, Pursue and Prevent (Abbas, Awan and Marsden 2023). The overall aim is to reduce the threat of terrorism in the UK, while the objective of the ‘Prevent’ pillar is to diminish the threat of home-grown terrorism by calling upon individuals in public-facing roles to report anyone they suspect of being vulnerable to radicalisation and terrorism. The remit of the Prevent pillar was extended by the 2015 Counterterrorism and Security Act. Since then, university staff have been incorporated into the strategy by the Prevent Duty Guidance (2015) that was legally imposed on them by section 26(1) of the Counterterrorism and Security Act. The Guidance and the Act together outline that higher education institutions must attempt to prevent individuals from being drawn into violent extremism, legally obliging them to report any individuals that they suspect of being vulnerable to radicalisation.

Prevent concentrates on the threat posed by ‘home-grown’ terrorists, including those who arrived in the UK as migrants. It imposes a legal duty on universities requiring them, in conducting their functions, to identify and report students who might be seen as ‘vulnerable’ to radicalisation (Choudhury 2017). Since its introduction in 2015, this duty has been subject to increasing empirical research in the education sector. Findings demonstrate the securitisation of higher education and ‘policing’ of Muslim students (Zempi and Tripli 2022). Prevent hampers freedom of speech, threatens student activism and forces Muslim students to hide their Muslim identity to avoid being labelled as ‘radical’ or ‘vulnerable’ to terrorism. Since its introduction in 2015, the duty has been subject to increasing empirical research in a variety of settings, including healthcare and education.

Prevent is another manifestation of border control, as the university is drawn into collaborating with the police to control and monitor students intellectually and practically at the level of action, speech, thought and appearance. Read in tandem with other criminalisation efforts and creation of pre-crime spaces (such as creating criminal liabilities for employers and cancellation of citizenship, which is examined in Chapter 6), we are left with an overwhelming impression of compulsory cooperation in criminal law enforcement through Prevent and this is especially disturbing in the sphere of education where free thought and free speech are important principles of debate and discourse.

The fact that Prevent legislation has made it a statutory duty for schools and universities to prevent terrorism means that staff have become agents of the state and thus utilised as tools for ‘surveillance’ within universities (Arshad-Ayaz and Naseem 2017). In this context, universities are presented as ‘inherently radical spaces’ and Muslim students ‘at risk of radicalisation as a result of inhabiting this location’ (Brown and Saeed 2015, 1955).

Right to access healthcare for children and their families

Although schools remain relatively safe spaces for migrant children, healthcare access can be challenging for those children without legal status. In the UK, while people without legal immigration status can access emergency care, families are reluctant to seek healthcare because they fear exposure to immigration authorities.

As we have seen in previous chapters, healthcare restrictions are nested in other hostile environment issues such as a rise in immigration raids, indefinite detention, restricted access to the housing rental market, driving licences and bank accounts, as well as potential family separation. Charging regulations are specific barriers to healthcare, and compound other issues for migrants such as lack of information, lack of support and language barriers. By scapegoating migrants as ‘health tourists’ who abuse ‘our NHS’, the government is able to draw attention away from a decision to restrict NHS funding (Tilford 2015). For instance, in the financial year 2015/16, the NHS as a whole reported an overspend of £2.5 billion in today’s prices, against a budget of £128.9 billion, hence showing a significant deficit in its budget (Gainsbury 2023). Yet, instead of discussing more funds the government launched a consultation on ‘migrant contribution to healthcare’ stating, ‘The next step in cross-government plans to make it more difficult for illegal migrants to live in the UK unlawfully, and to ensure legal migrants make a fair contribution to our key public services, has been launched today’ (Home Office 2013).

Following this there was a new programme. The Visitor and Migrant Cost Recovery Programme 2014–16 set out a series of measures designed to more readily identify and charge those not eligible for free NHS care. In 2014, the Immigration Act changed the definition of ‘ordinarily resident’, increasing the number of people not eligible for free NHS care, by effectively excluding anyone without indefinite leave to remain. The 2015 NHS charging regulations then followed, introducing the Immigration Health Surcharge and raising the amount an NHS Trust could charge ineligible patients to 150 per cent of the cost price. With charging mechanisms established and teams of Overseas Visitor Managers strengthened, the next step was to introduce upfront charging of non-eligible patients for all non-urgent care. A patient’s eligibility for free NHS care came to be checked more regularly from 2017 (Department of Health 2017).

Once in the UK, those migrants and visitors who have not paid the Immigration Health Surcharge may be chargeable for NHS care. There is little knowledge among the general public as to charging regulations and the exemptions that threaten migrant health. One area where this becomes apparent is in maternal healthcare services. Pregnant women both seeking and refused asylum tend to avoid seeking antenatal care because of their fear of being charged. In some cases, this was also linked to fears about their data being shared with the Home Office, which could lead to their deportation (as mentioned in Chapter 2). Children may be also kept from receiving care because of anxiety about family separation and fear of deportation if detected.

The hostile environment has encroached on a number of values central to the function of the National Health Service in the UK. Patient data-sharing undermines the need for access to healthcare in an atmosphere of trust. Healthcare access, transparency of healthcare operations and patient safety may all be compromised if the immigration exemption in the Data Protection Act is used for accessing and sharing healthcare information and linked immigration data. With the revelation of the mistreatment of the Windrush generation, such concerns have been realised as people who are in fact British citizens are refused healthcare because they cannot prove their status. The narrative of ‘deservingness’ has trumped universal access to healthcare (Sales 2002). With digital technology being increasingly used in immigration control it will soon be possible to have all immigration decisions automatically determined by artificial intelligence (automated decision trees being employed and facial technology used for recognition and monitoring access at borders). This can mean no appeals for those whose cases have been erroneously considered and no recourse to any special considerations for those in desperate need of assistance. Such apparent injustice needs to be countered at the earliest possible stage: stopping data sharing would be the step that would prevent erroneous decisions having catastrophic consequences for people. A feeling of trust that everyone can access care without negative repercussions needs to be engendered and is essential for both individual and community health (PICUM 2020). If private parties are collecting immigration data, they need to be similarly informed that immigration data is personal data collected only for a specific purpose, which should not be processed for any unrelated reason.

In the UK children without status face great uncertainty over access to services and future employment, and anxiety about deportation. Not only can this impact on their mental health, but upfront charging for health services may prevent access to care (Papageorgiou et al. 2020; Johnson 2018). In the UK non-residents have had to pay NHS charges since 1977, but in practice this was rarely enforced. In 2015, The National Health Service (Charges to Overseas Visitors) Regulations introduced new treatment fees (often required in advance) as well as routine immigration checks on patients by hospital and community health service staff. In England the details of patients with unpaid NHS debts above £500 are referred to the Home Office after two months, which can lead to an immigration or asylum application being denied.

In the US, children cannot enrol in insurance coverage under the Affordable Care Act (ACA) which means they have very little ability to get treatment. Five states (California, Illinois, Massachusetts, New York and Washington), plus Washington D.C., extend healthcare services to undocumented children but in other states children have little access. The border experience impacts children’s mental well-being and not having access to care makes them especially vulnerable. For example, the ‘Zero Tolerance’ policy enacted by the Trump administration, which meant all irregular border-crossers were prosecuted, resulted in families (including children) being detained at the US–Mexico border. Some were even placed in cages. Children grow up having to keep their legal status hidden, creating strain on their lives (Hernandez 2023).

Those affected by immigration control often need healthcare because of the impact of immigration measures yet the very same system holds them back from obtaining treatment. The narrative of ‘deservingness’ has again come into play across both sides of the political divide with a person’s record as a citizen (paying taxes, not having a criminal record and doing voluntary service) becoming a factor in political debates about whether or not people should receive treatment (Gentleman 2018). The moral position, that healthcare is a human right, is undermined by justifications for exclusion which ignore the structural determinants of health. Justifications for exclusion then expand into deciding who actually deserves publicly funded healthcare. This is very similar to the arguments about restricting welfare access, which also hinge on ideas of deservingness. For example, the Home Office initiated a policy that it would seek a second medical opinion in respect of vulnerable people in immigration detention when they have already submitted an ‘external’ medical report – produced by Medical Justice or another independent medical professional – as to their vulnerability to harm in immigration detention. This then delays any treatment that could be available for those detained. In a judgment handed down on 12 January 2024, Medical Justice, R (On the Application Of) v Secretary of State for the Home Department [2024] EWHC 38 (Admin), the High Court allowed a judicial review brought by Medical Justice to this policy so that there was no further harm to vulnerable people.

Another case where mental health was given importance by the court is the case of HA (Nigeria) [2012] EWHC 979 (Admin). The court held that HA should not have been detained due to his mental health. He was transferred between hospital and detention centres several times and this worsened his situation. His treatment and the conditions in which he was held were found to amount to a breach of Article 3 of the European Convention on Human Rights, which prohibits inhumane and degrading treatment. The relevant detention policy – which had been changed to allow people with mental illness to be detained if they could satisfactorily be managed in detention – was also found to be unlawful. The Home Office appealed but later withdrew its appeal.

Similarly, the use of force on immigration detainees in hospital, FGP v Serco & SSHD [2012] EWHC 1904 (Admin), was also successfully challenged. In the case of EH, R (on the application of) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin)), EH, a Rwandan genocide survivor, was unlawfully detained for three months because the Secretary of State did not give due consideration to their serious mental illness. EH was granted leave to remain for a further three years. The Secretary of State for the Home Department agreed to pay EH damages in the sum of £35,000.

Mental and physical health both matter when people are detained for a long duration. In BA, R (on the application of) v Secretary of State for the Home Department [2011] EWHC 2748 (Admin) (26 October 2011), BA had been detained in Harmondsworth IRC (Immigration Removal Centre) for 156 days. By this stage, it was and had been clear for some time that detention was having a serious effect on BA’s mental and physical health. The judge decided that a point had been reached where the negative effect of detention on BA’s health, coupled with the fact that this effect was likely to postpone any decision on his asylum claim, meant that detention had ceased to be for a reasonable period. After that period continued detention turns into false imprisonment and BA had to be released and given damages for false imprisonment.

Access to children’s health services in detention

Returning to the specific context of children, the agony of detained children is palpable. In R (on the application of Reetha Suppiah and Others) v Secretary of State for the Home Department [2011] EWHC 2 (Admin), the High Court judge ruled that two asylum seekers and their children were unlawfully detained at Yarl’s Wood immigration centre. The children, along with their parents, were removed from their home and taken to the prison by UK Border Agency officials. They were kept in confinement for thirteen days and suffered from diarrhoea and vomiting. However, after their release the children continued to suffer from reoccurring nightmares. The parents sought a declaration that the government policy on detaining minors at the centre was so defective that it could not be efficiently conducted. The grounds for challenge alleged Articles 3, 5 and 8 of the European Convention (right to life, fair trial and family life) had been breached.

In 2011 (at the time of this case) there were nearly one thousand children detained in immigration removal centres who were members of families identified for forced removal from the UK. They were held subject to detention indefinitely under administrative orders, without time limit and without judicial oversight. On average, children spent almost sixteen days in detention; in some instances, however, detention lasted for as long as sixty-one days. There are many instances where children are detained but then released again because removal, for whatever reason, cannot take place. The children are supposed to be provided with education and leisure activities while they are detained with their families, but their situation becomes hugely vulnerable whilst in detention.

Preserving children’s rights and keeping families together

There is very little legal advice in immigration law that is accessible and affordable for most migrants. Given the vulnerabilities in this sector and the need to protect young children, pregnant women and those potentially in abusive relationships, there has to be access to legal advice for all affected (Yasenov et al. 2020). It is possible to create sanctuary zones for populations seeking asylum or those without full immigration status, such as sanctuary cities or even institutions like universities where data sharing could be refused. However, there could still be demands made in the national interest under the immigration exemption in the Data Protection Act, which permits the sharing of data, such as an interest in immigration control (Bauböck and Mourão Permoser 2023).

Given the enormously detrimental effects of immigration measures, particularly on health, there are some effective ways of ensuring access to healthcare services is not affected by the new data-sharing and charging measures. One option is to create a firewall between health provision and immigration. One firewall mechanism is to simply implement a ‘don’t ask – don’t tell’ policy, so that information from healthcare professionals does not reach immigration law enforcement (Carens 2013, 130–47). By simply not sharing personal data it is possible to keep people safe from deportation (Lasch et al. 2018). While this resists bordering, it also supports the wider population from communicable diseases and public health crises and allows medical staff to prioritise medical issues. In terms of education, too, it is clearly important to have a firewall between education and immigration services. Any child should be able to engage in education particularly at a young age without fearing that the adults responsible for them in school will report on them. If undocumented children do not receive a proper education, their only options in life may be to engage in criminal activities or be part of other exploited sectors, a situation that also adversely affects wider society. Yet firewalls are a limited protection and one that is not very effective if legal duties to share data are imposed on providers.

If there is instead a sanctuary zone, through the carving out of safe spaces at subnational levels by agents that act independently of, or in resistance to, national governments, then people are better protected. Setting up a sanctuary zone is a complicated affair and requires coordinated resistance by a number of organisations, including NGOs, municipal/urban local authorities and community groups. It can involve initiatives such as declaring universities or even cities as sanctuary zones where immigration duties will not apply. Governments of sanctuary cities or regions can use their territorial autonomy to prevent deportations (Bazurli and de Graauw 2023). Even individuals and institutions in civil society, such as churches, who give shelter to undocumented migrants, can be part of a sanctuary movement. While this is an inclusive measure and provides better protection in some ways than creating firewalls, it is limited to specific zones or periods in a person’s life and is contingent on ongoing mobilisation around them.

Perhaps the best way to protect people, and especially young people, who may not have all their legal documents, is to regularise their status through providing special mechanisms of inclusion. Clear pathways for migrants to regularise their status would reduce the number of residents with a precarious status in the first place and reduce any repercussions from possible data-sharing of their immigration status. There is a need for national governments to ensure that any restrictions on access to services and welfare support are proportionate and that there are clearer pathways for those with an irregular status to regularise their position. No one should be without status forever (Van Hout et al. 2024). Many countries have some pathway towards regularising after a certain number of years of residence during which people have to demonstrate they did not acquire a criminal record. Individuals may be given amnesties to prevent overwhelming immigration resources in negative state functions, such as prevention of irregular immigration, and instead provide support to those living long-term in the country. Young people could have their age counted in their favour in such schemes as they are more likely to possess social membership. Providing regularisation prevents the development of underground economies which depend on irregular labour. Using legal criteria to regularise migrants’ status strengthens the rule of law as it enhances predictability (Song and Bloemraad 2022). After a certain period of association with a country people may become full members of society in a process akin to rehabilitation after a statute of limitations for criminal offenders. Only regularisation can provide people with full protection against future bordering practices.

Conclusion

As we have seen in this chapter, although amplified by hostile environment monitoring in the UK, and the global political distrust of migrants and asylum seekers, the historical context for distrusting and monitoring migrant family units is linked to colonial relationships of expropriation. Children usually form the core of families, so family bordering practices affect them when the adults in their families are targeted or when they are themselves denied fair treatment. They are the future of humanity, yet the treatment of children in terms of the right to a family, access to healthcare and education, which are basic rights, is patchy at best and extremely cruel at worst. Their treatment demonstrates both the extreme human costs of bordering as well as the potential of the law to act as a shelter when mobilised in a protective manner. Despite special welfare duties towards children, they are not given full access to basic rights and are often left in distress. Their situation as asylum seekers is especially precarious.

Through immigration measures the private space of family life becomes open to public intervention for demographic control. By regulating families, states are regulating zones of love and care. When this regulation lacks compassion it demonstrates a stark disregard for humanity and the emotions that make us human. The stories of families pulled apart by immigration control are heartrending and these need to be disseminated widely so that people can understand how borders operate. The humanity of asylum seekers should be apparent to all but needs reiterating again and again in the climate of politics of hate around displaced people. The law appears to strip them of basic dignity by invading their most intimate relationships. Yet, this chapter also demonstrates that the role of law in challenging state power can be immense. It is possible to develop creative means of challenge and resistance, especially through coordinated efforts. Professionals, charities and voluntary organisations have to work closely together on several fronts, such as educating different stakeholders on what the legal provisions on charging or data sharing or child welfare actually are. Is this possible at all times or is it suspended during times of emergencies? That is a query for the next chapter.

Notes

1. 1.  See EPCAT and UCL report, ‘Behind Closed Doors’, which states there were 440 missing episodes reported among the 5,400 unaccompanied children housed from July 2021 to June 2023, see p. 7. https://www.ecpat.org.uk/Handlers/Download.ashx?IDMF=b6fe36f8-4e04-4d3a-81bc-990633b7067c. Accessed 20 October 2025. See also Parliament Written Questions and Answers: https://questions-statements.parliament.uk/written-questions/detail/2022-10-11/61091. Accessed 20 October 2025.

2. 2.  It is interesting that the teacher is always referred to as Mrs K in the documents and in the press despite it being a matter of contention whether she was married or not.

3. 3.  B v I (Forced Marriage), https://www.4pb.com/case-detail/b-v-i-forced-marriage/. Accessed 20 October 2025.

4. 4.  UK Visas and Immigration, ‘Indefinite Leave to Remain or Enter (Domestic Violence or Abuse)’. https://www.gov.uk/indefinite-leave-to-remain-domestic-violence-abuse/eligibility. Accessed 20 October 2025.

5. 5.  UK Government Note on Student visa: https://www.gov.uk/student-visa/family-members. Accessed 20 October 2025.