Trans-jurisdictional Marriage and Family Reunification for Refugees in the United Kingdom
Prakash SHAH
Introduction
It is increasingly recognized that members of some diasporic minority groups in western European countries continue to marry trans-jurisdictionally and often in the countries of origin of those communities (Beck-Gernsheim 2007).1 Some European political and legal systems have demonstrated concern about such marriages, a concern increasingly reflected in a series of similar restrictive norms and practices, not entirely new, applied across European states to ensure that members of such minorities rely less on established practices of marriage within their kin groups elsewhere.2 Most prominent among such schemes is the enactment of a series of controls in recent years which premise the right to family formation and/or reunification upon prospective spousal entrants passing (European) language and culture ‘integration tests’; measures which raise the eligible age for immigrant spouses and their sponsors as compared to the legal age for marriage within the legal systems concerned; or the increasing policing of marriages on the pretext of ensuring that such marital unions have been entered into by ‘free consent’ and are not ‘forced’ through familial pressure (Wray 2009, McGauran 2007, Human Rights Watch 2008).3 This article discusses a rather less explored facet of states exerting power, in the context of immigration control, to question the validity of marriages.
Underlying such practices is the knowledge that trans-jurisdictional marriages add to the minority populations which are seen as a liability to the cultural integrity of European states. They are supported by reliance on a notion of legality premised on methodological nationalism with its built-in sceptical treatment of transnational and trans-jurisdictional family arrangements. The nation’s cultural integrity must be protected from the culturally and religiously ‘other’ non-Europeans. Multiculturalism, in so far as it has been pursued as a policy response to the consequences of post-war immigration, is now seen as having led to an ‘excess of alterity’ which is seen as a threat to the cultural order of Europe (Grillo 2005, 2007). The reaction to Europe’s cultural ‘others’ is deeply conditioned by a long-standing process established by Christianity. This religious standpoint of Europe’s dominant cultural and legal systems, however changed through secularisation, nationalism and individualism, seems to hold some explanatory value for theorising the substantive character of the kinds of restrictions we witness today.4 The kinds of restrictions discussed in this article also continue to betray the reliance of modern law upon the positivist idea that state law can simply displace the human dimensions of private familial arrangements by the stroke of a legislator’s pen or by an official’s decision. Legal arrangements made within alternative, ‘transnational social fields’ (Glick Schiller 2005) are, meanwhile, continuously calling into question how far state-centred assumptions should continue to guide legal systems in their endeavours to formulate appropriate recognition rules.5 As the cases discussed below demonstrate, this seems particularly so where the situation of displacement obliges parties to rely upon pragmatic methods of marriage solemnisation recognised in non-Western legal systems.
The progressive pluralisation of European societies in the post-war period was initially a result of worker immigration and the subsequent family reunification process. This pluralisation has become more complex in recent decades because of the significant asylum migration experienced in Western Europe, including the UK. The table below shows the top ten asylum seeking nationality groups in the UK in the period 1998-2009, and juxtaposes their presence by other measures of those populations based on figures for country of birth and the resident population by nationality. The figures are not easily interpreted, however. The presence of asylum seekers within the larger populations may point to the mixed reasons for the presence of persons within the same group by country of origin and the methods of securing their residence in the UK and, sociologically-speaking, it is not easy to disaggregate asylum seekers within each group from their larger nationality or country of origin communities. Those once present as asylum migrants may no longer be counted as such as they have moved on to acquire a secure residence status or British citizenship, or they may have arrived in the UK after acquiring the citizenship of another EU state.6 Since the numbers of asylum applicants presented here are based only on figures for ‘principal applicants’, they do not reveal how patterns of family reunification and family formation influence the wider populations from the same countries and the extent to which these processes are occurring trans-jurisdictionally. At present we have limited information about such processes. What the figures do underline, however, is that changes in the UK population have now gone far beyond the results of earlier post-war migrations, and have acquired a profile of ‘superdiversity’ (Vertovec 2007), not least as a result of recent asylum migrations. Additionally, asylum migrants are part of larger groups of similar origins, members of which may help consolidate the process of settlement and may also influence how spouse selection takes place.
