By: Helena Wray, Associate Professory of Law, Middlesex University
This post is part of the joint blog series on ‘Gender and Migration’ co-hosted by Border Criminologies and COMPAS. Posts in this series will be published on both blogs every Friday until the end of June.
Immigration controls over marriage both reflect and reinforce the gendered norms of family life. In this polarised and politicised arena, such norms have often been articulated with particular crudity. In my work on the regulation of spousal migration, I have shown how certain migrant husbands have been characterised, at best, as cynical instrumentalists and, at worst, as sexually exploitative or abusive. Female citizens, who bear responsibility for national, social and cultural reproduction, have been castigated for their irresponsibility, disloyalty or naivety in entering unsuitable relationships. These ascriptions have been even more marked when relationships have subverted other expectations about power relations and sexual attraction. A relationship between a man from a developing country and an older British woman will often be seen as ruthless opportunism on his part and self-delusion on hers.
However, such controls have never been mainly about gender or marriage. To be sure, the ways in which gender emerges and is deployed in marriage migration controls have evolved as societal understandings and expectations have changed. Even in this socially conservative arena, ideas about who has agency, who may love whom and who will exploit whom are not exactly the same as they were fifty years ago. But gender’s significance in the control of spousal immigration has also varied according to its ability to serve immigration-related outcomes. Gender, while always present, comes in and out of focus as a critical feature of the legal regime and has been harnessed in different ways to underpin particular forms of exclusion.
The development of differential treatment
Overt gender discrimination is now both legally and culturally unacceptable but this was not always so. Until 1948, women were assumed to adopt the nationality of their husband. British women foolish enough to marry aliens were liable to deportation, disenfranchisement, loss of consular protection, and other disadvantages. Early immigration controls assumed a male worker, wife and dependants. The Commonwealth Immigrants Act 1962, which imposed immigration controls on non-white Commonwealth citizens, had a statutory exception for wives and minor children while the admission of husbands was discretionary. For five years from 1969, all Commonwealth husbands were barred from entry in the absence of ‘special features’. Once the ban ended, aspiring migrant husbands continued to be treated less favourably than wives.
This differential treatment ended after the case of Abdulaziz, Cabales and Balkandali, where the European Court of Human Rights confirmed that article 8 ECHR, the right to respect for family life, applies to immigration decisions. However, the Court found against the government not because its policy was too restrictive but because it was discriminatory. Compliance could be achieved through levelling down; an equality of misery for all. Since then, the law has been formally neutral but its gendered implications have not disappeared. Until it was removed in 1997, the primary purpose rule required spouses applying for entry to show that the primary purpose of entry was not immigration. It was particularly used against husbands entering arranged marriages who were said to breach traditions of patrilocal residence by joining their wives in the UK and who could not counter allegations of immigration instrumentalism with a conventional narrative of romantic courtship.
The dismissal of family life claims made under the Human Rights Act 1998 was regularly underpinned by the minimisation of men’s affective ties and commitments. Discussion of immigration control measures directed at preventing forced marriage relied implicitly on common representations of oppressive, patriarchal families and vulnerable female victims. Most recently, the implementation in 2012 of a high income threshold has particularly affected women (and some other groups) hoping to sponsor the entry of a partner, reinforcing a longstanding pattern of greater male exclusion.
The acceptable marriage migrant
But, while gender has been a persistent and protean presence in the control of marriage migration, I would argue that it often appears most salient when the main regulatory concern is elsewhere. All of the measures discussed above were or are ways to control the admission of those whose defect is or was not only or even mainly their gender but their race or nationality, their immigration status or their socio-economic position; classic instances of intersectionality. The primary purpose rule, for example, was only used against men from non-white countries. In the same period, thousands of wives and children from the Indian sub-continent could not join husbands and fathers in the UK because they could not show they were ‘related as claimed’. These surprising conclusions (why would so many men wish to bring in wives and children who were not their own?) were drawn using administrative means including unrealistic documentary demands, reliance on ‘discrepancies’ arising during lengthy and hostile interviews and dubious ‘medical evidence’.
Meanwhile, men and women from white countries continued to enter unhindered. The attempt to raise the minimum age of entry and sponsorship of spouses to 21 was, in effect, struck down by the Supreme Court because it had an insufficient connection with the prevention of forced marriage. But the policy was consonant with wider concerns that transnational arranged marriages, particularly between the young, enabled the reproduction of family norms and practices regarded as problematic. The minimum income requirement is congruent with a policy aim of making immigration an elite activity.
So, while assumptions about gender shape perceptions of who is an acceptable marriage migrant, they also support the routine and unpleasant work of immigration control. Family migration is a tricky proposition for governments. The exclusion of most migrants has little immediate impact on the resident population but marriage migration, by definition, engages the interests of a British citizen or resident in the most intimate sphere of their lives and where they would otherwise expect considerable autonomy. These expectations are sometimes supported by the courts using their human rights jurisdiction. Governments, however, fear the admission of unskilled, culturally different or otherwise apparently unsuitable entrants, undermining restrictive policies elsewhere and perceptions of competence.
The trend in the UK (and in some other European countries) is towards the application to spouses of criteria more commonly associated with economic migrants such as integration and language tests and elevated income requirements. Sham marriage controls often target a much wider group, recently those without approved immigration status. Controls over marriage migration must be justified and explained both more extensively than and differently to other forms of immigration control. In that context, the ability to deploy or rely on gender and gender norms, overt or, in recent times, tacit, to control or cast doubt on the suitability or credibility of unwelcome applicants is a valuable resource.