Immigration Bill — Committee (2nd Day)

– in the House of Lords at 3:53 pm on 5 March 2014.

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Relevant documents: 22nd Report from the Delegated Powers Committee, 8th and 12th Report from the Joint Committee on Human Rights.

Amendment 30

Moved by Baroness Hamwee

30: After Clause 11, insert the following new Clause—

“Administrative review

(1) Section 11 shall not come into force until a draft of an instrument making provision for the conduct of the review of decisions the subject of that section has been laid before each House of Parliament and approved by each House of Parliament.

(2) Provision under the instrument shall include—

(a) procedures for reviews to be agreed by independent persons;

(b) oversight of reviews by an independent person;

(c) reports to Parliament by the independent person.

(3) Section 11 shall lapse five years after the date it comes into force unless it is continued by an order made by the Secretary of State subject to annulment in pursuance of a resolution of either House of Parliament.”

Photo of Baroness Hamwee Baroness Hamwee Liberal Democrat 4:15, 5 March 2014

My Lords, Amendment 30 is about administrative review. I am not commenting on the reduction in rights of appeal per se, but if we are to see a reduction of the basis of appeals, and if they are to be reduced on the basis of the use of administrative review, the procedure must be robust and trusted. However much we hear that it will be robust—I have seen the statement of intent—it is fair to say that critics have not been won over. Many noble Lords will have received briefings, including examples of reviews previously undertaken under different—but not so very different—procedures, and I shall give a couple of them to the Committee.

The first is a student applying to transfer his tier 4 leave to a new passport. The university provided letters quoting the relevant Home Office guidance confirming that a new certificate of acceptance for studies was not required because it was not a fresh application, merely a transfer to a new passport, but the application was refused on the grounds that the student did not have a valid certificate. He applied for administrative review. He was outside the UK and needed to be back here quickly to get on with his studies. He waited a couple of weeks and then decided he had to submit a fresh application. The review upheld the original decision on the grounds that he did not have a valid certificate.

My second example is a student applying for leave for a master’s course after having studied as an undergraduate in the UK and undertaken two years of tier 1 post-study work leave. The application was refused because the case officer thought that the five-year limit on degree-level study would be exceeded, taking into account the two years, but in fact the case worker had incorrectly included the two years of post-study work. Reconsideration was requested, but the casework team would not overturn the refusal.

The point that decisions should be got right the first time is entirely reasonable and appropriate, and I am sure my noble friend accepts that. One can also entirely understand the point that reviewing colleagues’ work as a substitute for appeal is counterintuitive. Not only are colleagues being asked to attack, as it were, their colleagues’ work, but they are actually attacking the Secretary of State’s decision. One can understand their diffidence in doing so.

The amendment I propose does not seek not to have administrative review; it seeks to find a way to get procedures into a document that will require the approval of both Houses of Parliament. This might sound a rather heavy-handed way of going about something administrative, but we are talking about a proposed substitute for appeals. The amendment seeks to have procedures agreed by an independent person—I stress the term “independent”—with oversight of reviews as they take place by an independent person and a lapse after five years unless Parliament thinks that the procedures are suitable to be continued. This would be negative.

I am aware that the Home Office proposes that the process which it plans will be included—or, at any rate, it will ask for it to be included—in the chief inspector’s reviews. That is necessary, but I am seeking more than that. I have not tried to define “independent” in the amendment, but I do mean independent. There are in many parts of our legislation provisions for independent persons. By and large, the people who are appointed are independent. Once they have been given a remit, they tend to prove themselves really very independent and sometimes quite forthright.

I have comments on the statement of intent that was included in the bundle which was helpfully circulated. I am not going to take up the Committee’s time on that, other than to say that I note that the time limit for the applicant to seek an administrative review is 10 days, or two days if they are in detention—which seems to be very little if they want to take advice. I wonder how the Home Office will ensure that the limit of 28 days to come to a decision will be met, given the current timescales of which we are aware. I wonder, too, whether my noble friend can explain what opportunity there will be for an applicant—the “customer”, as he is called in the statement—to make representations on the facts to the reviewer.

However, that is not at the heart of this amendment. When I raised the issue of trying to stiffen the arrangements for reviews with those who work in the field, they said that when the issue had been discussed in 2006, when the House was talking about out-of-country reviews, administrative review became a “chimera” chased through many hours of debate, a “red herring”, and a “scarlet pimpernel”. We do not have a “smokescreen” in there; I will not pursue what other metaphors there might be. I thought that that was harsh, but it is important that we have reassurances on how we are going to have real detail on this that both Houses can consider.

In the statement of intent, in answer to the question of how it can be confident that it will be able to operate administrative review effectively, the Home Office referred to the current operation overseas—where there is a strong record, with over 90% of reviews completed within the target of 28 days for the quarter in question—and said that administrative review also makes a difference in entry clearance cases: in 2012, the initial decision was overturned in 21% of cases. I think that my noble friend would understand that some of this is in the eye of the beholder. It rather depends on whether you are the applicant as to how you perceive this. I note that success is expressed here in terms of time limits rather than substance. I suppose we could really know if administrative review is working well only if it were possible to run it as a sort of shadow to the appeals process—but we cannot, to my mind anyway, run two systems in parallel.

Therefore, the amendment focuses on how to get as robust and trusted a system as possible. Having said that—this is a trite point but it needs to be made again at this point in the debate, and I am sure that my noble friend will agree—there should be a robust, trusted system of internal review in any event, because this is about making the right decision as efficiently, effectively and quickly as possible. I beg to move.

Photo of Lord Paddick Lord Paddick Liberal Democrat

My Lords, I support Amendment 30, at least in principle. I support the move that the Government are trying to make to avoid abuse of the system of appeals, whether by unscrupulous organisations which try to make money from endless and inevitably futile appeals that exploit not only the taxpayer but also the applicant, or by those who are not entitled to be here or come here but who want to exploit the system in order to extend their stay, despite not having legitimate grounds to stay. However, before I can support removal of the right to a judicial tribunal appeal, I would ask the Minister for reassurance that the proposed replacement with an administrative review will provide an equally reliable route of appeal.

My noble friend Lady Williams of Crosby and I share a common concern about the culture within the Home Office to which my noble friend Lady Hamwee alluded—that it would be very difficult for an officer in the Home Office, particularly someone of equal grade to the original reviewing officer, to overturn a decision made by their colleague. Perhaps I can help the House with a definition of “independent”, to which my noble friend Lady Hamwee refers in this amendment. Nobody can be a commissioner of the

Independent Police Complaints Commission if they have previously been a sworn police officer. One would expect a completely independent person who reviews these decisions to be somebody who has not been and is not currently a member of the Home Office.

Under the current system, even when the presenting officer for the Home Office at the judicial tribunal has reviewed the case, a high proportion of those appeals are still successful. Can the Minister tell us how the new system of administrative review will differ from that, and, therefore, give us more confidence that it will be far more effective than the current one? Of course, decisions made under the new administrative review system can still be challenged by judicial review with an appeal to the High Court. Can the Minister reassure us that this route will not be even more expensive than the current judicial review process; or, bearing in mind the recent cuts in legal aid, does the Minister believe that far fewer people will be able to afford to go down that judicial appeal route?

In short, I am not in principle against the new system of administrative review if—but only if—the Minister can reassure the House that it will be far more effective than the current system in achieving swift and just outcomes for applicants. Neither does my noble friend Lady Hamwee call in her amendment for an abandonment of the new system. In the absence of the Minister being able to convince the House on the matters that I have raised, perhaps it would be better for him simply to support my noble friend’s amendment.

Photo of Lord Avebury Lord Avebury Liberal Democrat 4:30, 5 March 2014

I am concerned that the reduction in the number of immigration decisions that can be appealed from 17 to four, as the Bill intends, may lead to injustice and that the administrative review system which is to be substituted for the right to appeal to the First-tier Tribunal in those cases is manifestly unfit for purpose in making decisions that can fundamentally affect the whole course of an appellant’s life. As my noble friend Lord Paddick says, in all the cases where there is an appeal at present, the file goes to the presenting officer, who conducts the case before the tribunal. That official is in a more senior grade than the executive officer who made the original decision, which may be a partial reassurance to my noble friend; that person conducts an administrative review, which can lead to the refusal being withdrawn, and does so in a small proportion of cases. However, following this process, the Home Office loses half its appeals. It has to be assumed, therefore, that half the cases that go through administrative review as a result of this Bill are likely to be wrongly decided against the applicant.

The injured applicant can still make an appeal on human rights grounds, some of which are eligible for legal aid, and it is expected that quite a few will do so, cancelling out, as my noble friend hints, some of the savings that the Government hope to achieve by restricting the common law right of access to the courts. There will also be applications for judicial review, although legal aid for that purpose will be available only in a limited set of cases, including some but not all refugees, but excluding trafficked persons and victims of domestic violence. Does the net saving of £219 million over 10 years, which is expected according to the Home

Office briefing, take into account the estimated costs of these appeals, and can my noble friend give us the figure?

The briefing says that the service standard will be to complete the administrative review within 28 days. That is the existing service standard, but when the chief inspector looked at the visa section at Amman it was found that the average time taken was 74 days. The statement of intent may say that we look to achieve the standard of 28 days, but it has not been done in the past. Although I dare say that there has been some improvement since the chief inspector visited Amman, it is doubtful whether the system will be able to keep up with the additional 40,000 cases a year without extra staff and extra training, for which I assume that allowance has been made in the arithmetic. I would be grateful for reassurance on that point. What about the half a million backlog identified by the Home Affairs Select Committee? Are they entitled to an administrative review and have the Government considered how they will deal with the additional cases that will arise when landlords, university staff and health workers are pressed into service as ancillary immigration officers?

Administrative review is not a way of securing fairness and justice for immigrants who are refused leave to enter or remain, but of reducing the number who would have succeeded if they had been able to put their case to the tribunal. It may not even result in any saving of public funds. The right way to achieve both those objectives would be, as my noble friend Lady Hamwee said, to tighten up on the training and supervision of the case workers who make the original decisions so that they get it right first time. That should have been the aim; then we would not even have thought about depriving people of their legitimate rights. At the very least, we should give the Home Office the chance to prove that administrative reviews can be made effective by the means proposed in this amendment. If it can be shown that the existing prehearing reviews pick up wrong decisions, it is well and good; but if the outcome is simply to confirm that reviews are no substitute for the judicial process, Clause 11 should not come into force.

Photo of Baroness Manzoor Baroness Manzoor Liberal Democrat

My Lords, I support my noble friends Lady Hamwee, Lord Paddick and Lord Avebury, and align myself with the comments that they made regarding a robust and independent review. As the previous Legal Services Ombudsman and Legal Services Complaints Commissioner, I know the importance of this. It is imperative that the administrative review is not only independent but is seen to be independent for people to have confidence in the decision. I give your Lordships this analogy: a manager of a football team does not referee a game in which his own team is playing.

Photo of Baroness Smith of Basildon Baroness Smith of Basildon Opposition Deputy Chief Whip (Lords), Shadow Spokesperson (Home Affairs)

My Lords, it is an indication of the discontent with Clause 11 that this is the second debate we have had on it. We had an interesting and lengthy debate on Clause 11 on Monday in relation to the principle of the Government’s proposals, and on our amendments and those of the noble Lord, Lord Hannay. Noble Lords may recall our strong

opposition to the Government’s proposals to remove appeals in the way they are seeking to do. I will not repeat all the arguments that I made on Monday, other than where they are relevant to this amendment. However, for the convenience of the Committee, my comments are recorded at cols. 1178-1181 of Monday’s

Hansard

.

Originally, Amendment 30, in the name of the noble Baroness, Lady Hamwee, was grouped with others on appeals, including a not dissimilar one from myself, Amendment 27, which in some ways is like a sunrise clause to review and improve the current position before any further moves are taken to change the system to administrative review, although we were more specific as regards using the expertise of the Chief Inspector of Borders and Immigration. That is not particularly significant at this stage; both amendments were tabled in response to the existing problems in the system, whereby a very high proportion of the decisions appealed succeed, and an even higher proportion of those are down to casework errors. Therefore, I have no difficulty whatever in supporting the principle of this amendment, although I had hoped that the noble Baroness would support the principle of my amendment when I spoke to it on Monday evening. I recall that no noble Lords present commented on our amendments in that debate other than the noble Baroness, Lady Lister, perhaps because she has degrouped her amendment today as she wants a separate debate on it, even though the principle involved is very similar.

I repeat the broader point that we made on Monday and invite the noble Baroness to comment on our very real and genuine concerns about, not just the detail, but the principle of the Government’s proposals. We can all sign up to a process that gives timely, accurate decisions, and a swift process to address any errors. I do not think there is any dissent around those principles. However, if we take this clause in context, that is not what it does.

On Monday, we also moved a Motion that this clause does not stand part of the Bill. That device is often used to give your Lordships’ House the opportunity to have a broader debate around the principles of an issue. However, I also made it clear that removing the clause entirely would be our preference given the current position and the quality of decisions that are taken. Failing that, our Amendment 27 addressed exactly the same principle as that in the amendment proposed by the noble Baroness, Lady Hamwee, today. I also spoke to our Amendments 28 and 29 regarding an impact assessment and a review.

Our concerns about this clause and the proposal for administrative review go deep and are not confined to any individual group who would be affected—a lot of the debate on Monday evening centred on students—as this goes wider and would affect everybody who applies for review. The right to appeal is a fundamental principle of British law. As I say, we support a process that gives timely, accurate decisions, and a swift process to address any errors. We believe that such a decision should be challengeable and that recourse should be available.

However, as I explained on Monday and as other noble Lords have said today, the necessity for appeals is even more essential when we know how flawed the current system is. It is well documented that the department is already struggling to deliver a quality service and that there are huge casework backlogs, to which the noble Lord, Lord Paddick, referred. I provided details of the backlog of shocking cases regarding the length of time for which people are waiting for decisions to be made. More important is the quality of decision-making. The figures reveal that 32% of deportation decisions, 49% of managed migration decisions relating to work and students and 49% of entry clearance applications were successfully appealed last year. Despite the fact, rather surprisingly, that there are no official data from the Government, a Home Office sampling exercise revealed that 60% of the volume of appeals allowed are due to caseworking errors. That means that almost 30% of all appeals—60% of the 49%—are allowed due to caseworking errors.

When so many decisions are found to be flawed, should we really be trying to remove the current routes for appeal and replace them with administrative reviews? I asked the Minister when the sampling exercise was undertaken and over what period of time. I know that he could not reply on Monday. If he is able to do so today or write to me, it would be helpful.

Photo of Baroness Smith of Basildon Baroness Smith of Basildon Opposition Deputy Chief Whip (Lords), Shadow Spokesperson (Home Affairs)

That is really helpful and I apologise. I shall reread Hansard. I am sure that I did not doze off at that point.

As other noble Lords have said, we should focus on improving the efficiency of those initial decisions and making sure there is little need for appeals in the first place, because that is what will create confidence in the system, which itself will reduce the number of appeals. I am raising these points again now because it cannot be right that the Home Office’s response to its own inefficiency is simply to stop people challenging this inefficiency. I know the Minister pointed to an administrative review, but we have heard strong arguments today and previously that that is not the way forward. He said that the person reviewing the decision will not be the person who made the original decision but a cohort of immigration staff drawn from those who already make decisions. However, my understanding is that the Home Office already has a system whereby, in some cases, senior staff already review certain decisions. I cannot, therefore, see how an administrative review would be particularly significant if a number of decisions are currently overseen and reviewed by senior staff. Given the very high proportion of appeals allowed, which in most cases result from caseworking errors, it is clear that this problem with the quality of decision-making has to be addressed. Should that not be looked at by someone who is completely independent for there to be a real confidence in the system?

The noble Lord, Lord Avebury, raised the issue of the Government’s reliance on judicial reviews as recourse. A number of noble Lords today and previously have raised concerns about the cost. Not only do judicial reviews cost more than appeals but costs can be sought from the other party, damages may be claimed but the Government have to recognise—indeed, they do so in their assessments—that the number of judicial reviews are likely to increase. The noble and learned Lord will be aware of the comments by the Joint Committee on Human Rights that the Government’s proposals on judicial reviews do not take into account the committee’s comments and do not look at how,

“the Government’s other proposals to reform both legal aid and judicial review itself” impact on the ability to seek judicial review.

I can understand why the noble Baroness has brought forward her proposal but I do not really understand why it had to be a stand-alone debate, considering that we had a similar debate on Monday, when her points could have been made. I see that the noble and learned Lord agrees. However, there is a strong case to oppose this clause as a whole, and I see this amendment, which is similar in principle to our proposal on Monday, as a fallback position and not the solution. I also hope that the Minister will recognise that there are great concerns about the principle and implementation of the Government’s proposals, and will look at them again, given that there have now been two lengthy debates on this issue.

Photo of Baroness Hamwee Baroness Hamwee Liberal Democrat

My Lords, before my noble and learned friend responds, perhaps I may make it clear—I thought I had at the start of this debate—that I am not seeking to debate Clause 11. This amendment proposes inserting a separate clause after Clause 11 and is intended to be constructive on administrative review, not destructive of Clause 11.

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Lords Spokesperson (Attorney General's Office), The Advocate-General for Scotland, Deputy Leader of the House of Lords, Lords Spokesperson (Scotland Office), Liberal Democrat Leader in the House of Lords 4:45, 5 March 2014

My Lords, I thank my noble friend Lady Hamwee for tabling this amendment. She described it as being a self-standing amendment outwith Clause 11. However, it would delay the commencement of Clause 11 until such time as an instrument which provided for the conduct of administrative review had been approved by both Houses of Parliament. The proposed new clause also seeks to include within that instrument provision for procedures for administrative review to be agreed by independent persons, for oversight of those reviews by an independent person and for that independent person to report to Parliament. The proposed new clause also provides that Clause 11 should lapse after five years unless an order for it to continue in force is laid and not annulled by either House of Parliament.

The process governing administrative review will be set out in the Immigration Rules. There is no power in this Bill to make an order that will set out the administrative review procedure. Furthermore, as I have said, the administrative review procedure will be set out in the Immigration Rules prepared under the power in Section 3(2) of the Immigration Act 1971. The procedure under that Act provides that the Immigration Rules are laid before Parliament. Either House may seek a debate on those rules and pass a resolution disapproving of the changes proposed. Such a resolution would require the Secretary of State to lay further rules within 40 days. This procedure provides for parliamentary scrutiny of the process for administrative review, so there will be an opportunity for your Lordships’ House, if it so wishes, to scrutinise the process for administrative review, and indeed there will be an opportunity for Parliament to seek changes to that process. Therefore, I believe that it is unnecessary to seek an amendment to the Bill that provides for parliamentary scrutiny and approval of the rules governing the administrative review process. The process for scrutinising the Immigration Rules already provides for that.

However, I fully accept that there are concerns about the requirements relating to the administrative review process. Those concerns were expressed by the noble Baroness, Lady Smith, in our debates on Monday and are indicated by the new clause proposed by my noble friend and in the comments of a number of other of my noble friends. The safeguards sought are that the administrative review procedure should be agreed with an independent person, that there should be oversight of reviews by an independent person and that that independent person should report to Parliament.

It is our view that the administrative review procedure is best developed and finalised by those who will operate it. That does not mean that the process is being developed behind closed doors. As I think was acknowledged by my noble friend in moving her amendment, before Committee stage in the other place we published a statement of intent on administrative review setting out the details of the procedure, and it is that procedure which has come under scrutiny in this new clause.

I can confirm that administrative reviews will be undertaken by Home Office staff who will be independent of the original decision-maker and entirely separate from the initial decision-maker’s line management chain. We intend to establish a separate administrative review function for in-country migration casework. This means that those undertaking the reviews will be separate from those taking the decisions under review. We expect some of our most experienced staff to be among those undertaking administrative reviews. That does not mean that the initial decision-making will be left to inexperienced staff. I agreed entirely with my noble friend Lord Avebury when he said that the important thing is to get these decisions right in the first place. I could not agree more. It is worth noting that only 10% of decisions taken in-country are refused and therefore only a proportionate number of experienced caseworkers will be redeployed to review work from initial decision-making.

The noble Baroness, Lady Smith, quite properly said that, of the cumulative figure of 60% from the sample, 30% of refusals are due to that kind of administrative error. However, it is also important to recognise that, in terms of the totality of decisions taken in this field, that amounts to something like only 3% of all decisions taken. Of course, that presumes that every decision on granting an application is correct—we tend not to have appeals against incorrect grantings—but that puts it into some kind of perspective. Although 30% is a high figure, I am not running away from the fact that 60% came as a surprise, and it is important that we bear down on and reduce that figure.

The point of arguing for an administrative review is that, as the noble Baroness pointed out from that sample, there have been caseworking errors. It is better that those on the receiving end of the errors are able to get them corrected more quickly and we are serious about meeting the 28-day target. Indeed, it would be far less costly to do so through an administrative review than through the whole panoply of an appeal.

Photo of Baroness Smith of Basildon Baroness Smith of Basildon Opposition Deputy Chief Whip (Lords), Shadow Spokesperson (Home Affairs)

In the information that I have, a number of these decisions are reviewed later by a senior officer. If some of those are found to be incorrect, it would indicate that the review process is not as good as the Minister thinks. Does he know how many decisions ultimately appealed and won were reviewed by a senior officer as well as the initial decision-taker?

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Lords Spokesperson (Attorney General's Office), The Advocate-General for Scotland, Deputy Leader of the House of Lords, Lords Spokesperson (Scotland Office), Liberal Democrat Leader in the House of Lords

I am afraid that I do not have a figure for that further subcategory. If it exists, I will make sure that I inform the noble Baroness and others who have taken part in this debate, and will put a copy in the Library. That certainly could help to inform the debate as I am sure this issue may well arise later in our deliberations. All staff undertaking administrative reviews will receive full training in all routes and categories before they commence their work as part of the review team. I believe that the statement of intent indicated that it is intended to have a separate dedicated team of reviewers in each specialist area. Regular reports on the performance of the administrative review process as a whole will be sent to senior management. We will establish feedback mechanisms to ensure that lessons learnt are fed back to case workers.

I think I indicated in our debate on Monday that, within a year of the administrative review process being established, the Home Secretary will ask the independent chief inspector to include a review of the administrative review process in his inspection plan. Again, it is important to remember that the procedure will be set out in rules that Parliament can scrutinise. As I have said, we have committed to an independent oversight by the chief inspector in the public statement of intent that I have just read out. He has the power to undertake an inspection off his own bat and may do so if there are concerns about the administrative review process. His reports are published and Parliament may hold the Government to account in respect of those reports by means of questions and debates. Having to meet these additional requirements may also, if we were to go down the road proposed by my noble friend Lady Hamwee, delay the commencement of Clause 11. She quite properly said that there might be certain attractions in having two systems running in parallel, although I suspect that that would be a bureaucratic nightmare and would not properly serve the interests of anyone, least of all the applicants.

The delay in commencement is undesirable because it would delay migrants who would benefit from these changes, which would provide faster and cheaper resolution of caseworking errors. This delay could arise because the Home Office needs to identify an independent person who could take on the role envisaged in this amendment. This would also add an administrative layer to the development and operation of the administrative review. It is envisaged that the chief inspector would take on this role, a point that I already have made. We intend to benefit appellants and those who will no longer have a right of appeal under Clause 11. My noble friend Lady Hamwee proposes that it should lapse in five years unless there is parliamentary approval for it to continue in force, which I feel would not be of benefit.

Clause 11 fundamentally reforms appeal rights. It is a reform that is needed to simplify an overcomplex framework and to provide a faster and cheaper remedy for caseworking errors. However, because this reform is fundamental, reversing the change after five years could cause even further upheaval. The changes made to the appeals process and the court system would need to be undone. That could come not only at cost but also at the expense of considerable uncertainty.

My noble friend Lady Hamwee also made reference to the administrative review system that is already operating overseas. Some 90% of these reviews have been completed within the target of 28 days for the quarter ending June 2013. The proposed process for in-country, which we are debating here, mirrors the approach taken overseas. My noble friend also made the point that we are asking people to reverse the decision of their work colleagues and, as she quite properly put it, to overturn the decision of the Secretary of State. She mentioned the figures, including that in entry clearance cases in 2012 for operating overseas the initial decision was overturned in 21% of cases. I sometimes think that in this area you are damned if you do and damned if you do not. The figure of 21% is a sizeable number, which suggests that those who are doing the review are not necessarily intimidated by having to overturn the Secretary of State’s decision. Equally, one might say that 21% is far too high and that the figure should be lower, in which case they may say that they were frightened. The point is that the system that has been operating overseas has had 90% of cases completed within the target of 28 days. It shows that those who are doing the reviews are not scared off or hesitant in overturning decisions when mistakes have been made.

I recognise that there are concerns and I suspect we will return to this and that amendments will be tabled on Report, which will offer us a chance to reflect further on the points that have been made both today and on Monday. However, I believe that what we are putting in place will bring considerable simplification and lead to quicker and cheaper decisions. Therefore, for the reasons I have given on some of the detail but also because of the delays that could take place, the fact that there will be an opportunity for noble Lords to scrutinise the rules that will be put in place and because the chief inspector will be able to conduct his own review, I invite my noble friend to withdraw her amendment.

Photo of Baroness Hamwee Baroness Hamwee Liberal Democrat

My Lords, I suppose that if the chief inspector will have added to his workload checking to see if and how anyone is damned, one question he may be asking privately is what extra resources there will be for that. I take the point about the rules, which now have to be in the form of an order, being an opportunity for scrutiny. However, as we all know, one cannot amend an order. I also need to ask, although I do not expect my noble and learned friend—

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Lords Spokesperson (Attorney General's Office), The Advocate-General for Scotland, Deputy Leader of the House of Lords, Lords Spokesperson (Scotland Office), Liberal Democrat Leader in the House of Lords

If I am wrong I will correct this, but my understanding is that if Parliament does not support the order when it is scrutinised, the Secretary of State is obliged to lay new rules within 40 days. It does not annul the rules but new rules have to be promoted within 40 days.

Photo of Baroness Hamwee Baroness Hamwee Liberal Democrat

I am grateful for that. I do not think that it negates the question that I am about to ask, although my noble and learned friend may not be able to answer it at this point. It is about opportunities to feed into the draft rules before they come into final form. It is clear that there are a lot of points that could be constructive and helpful, which do not oppose the policy but come from the experience that so many people have of similar forms of process. What opportunity will there be to feed into the construction of the rules?

Also, how much detail will there be in the rules when they are proposed? The statement of intent, which to my mind raises some questions—I asked one or two of them—is probably more detailed than the rules. Anyway, as my noble and learned friend says, we may well return to this whole issue. Therefore, for today, I beg leave to withdraw the amendment.

Amendment 30 withdrawn.

Clause 12: Place from which appeal may be brought or continued

Amendment 31

Moved by Baroness Hamwee

31: Clause 12, page 10, line 31, at end insert—

“( ) An appeal to which subsection (3) applies must be brought from within the United Kingdom if there is a child of the appellant in the United Kingdom.”

Photo of Baroness Hamwee Baroness Hamwee Liberal Democrat

In moving Amendment 31, I will also speak to Amendment 32 in this group. The amendment takes us to Clause 12, which deals with the place from which an appeal may be made. The first amendment is particularly concerned with children.

Clause 12(3) proposes that “foreign criminals”, as defined, and people whom the Home Secretary deems not to be conducive to the public good can be deported first and appeal after unless that would cause “serious irreversible harm”. The concern raised by the amendment relates to the consequences for child welfare, something which this House discussed on Monday in the context of detention and which we have so often discussed.

I am concerned about the needs of children who could be split from a parent by that parent’s deportation. We have often referred to the UN Convention on the Rights of the Child, which says that,

“a child shall not be separated from his or her parents … except when competent authorities subject to judicial review determine”—

I accept there is the right for judicial review—

“in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. …In any proceedings pursuant to … the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known”.

I do not think it can be denied that there will be problems in taking matters forward from abroad but, even where parents are able to bring an appeal from abroad, there will have been disruption and quite possibly damage to the child from the separation, as they will either have accompanied the parent or have been separated. Where there are two parents, which is not invariably the case, the child will be separated from one of them.

A number of noble Lords will be familiar with the work of the organisation Bail for Immigration Detainees and its report Fractured Childhoods on the cases of more than 100 parents who were separated from their children by immigration detention. The concerns about separation of course come up in many contexts, not just immigration, but the impact on a child’s development is one that child psychologists and neurobiologists are increasingly aware of and managing to explain to the rest of us.

Therefore I take this opportunity to ask my noble friend several questions. What assessment have the Government made of the barriers to deportees appealing from abroad? What data might there be on success rates for appellants who appear in court compared to those whose cases are heard in their absence? In particular, in the context of my amendment, have the Government assessed the impact on children who are settled in the UK with one parent if the other is deported for a significant period? What estimate have the Government made of the number of deportees who will lodge judicial reviews and of the costs and delays in concluding cases?

My second amendment, Amendment 32, is a probing amendment on the new Section 94B. Subsection (3) of new Section 94B says:

“The grounds upon which the Secretary of State may certify a claim under subsection (2) include (in particular)”, and then goes on to spell out the detail. My amendment would replace “include (in particular)” by “are”, which makes clear the basis on which the Secretary of State may certify a claim. My noble friend will understand that this is not because I want to be more restrictive but in order to ask about the circumstances in which deportation would be permitted when a human rights claim is made which the Secretary of State has refused and about which the person is appealing or wishes to appeal.

If the Secretary of State does not consider deportation to be a breach of human rights, in what circumstances could she rationally conclude that it would do “serious irreversible harm” to deport pending an appeal? Is it the case that, where she refuses the human rights application, she will also decide that new Section 94B(2) applies and so the deportation will proceed before an appeal is brought or finally decided?

My noble friend Lord Taylor has written to us quite extensively following the debate at Second Reading and has drawn attention to the “real risk” of the serious irreversible harm test:

“If there were dependent children in the UK and it could be shown that there were exceptional reasons giving rise to a real risk of serious irreversible harm, the power to certify [i.e. to apply new section 94B] would not be exercised and the criminal could appeal from the UK”.

But that new section is drafted quite restrictively. On its face, it applies only where there is a real risk of such harm to the person facing deportation—it uses the words “that P would not”, where P is the person facing deportation. There has to be a concern, and it is one that I am expressing here, about that person’s child, and indeed there may be other family members who face such harm.

Others will point to and have pointed to the proposed reforms of judicial review which the Government have in train, the difficulty of pursuing judicial review from abroad and, indeed, the undesirability of there being a large number of judicial reviews. I hope that my noble friend can assist on the questions I have asked. There is also an amendment in this group from the noble Baroness, Lady Lister. I beg to move.

Photo of Lord Pannick Lord Pannick Crossbench 5:00, 5 March 2014

My Lords, perhaps I may add my support to the points that have been made by the noble Baroness, Lady Hamwee. I shall speak to Amendment 31A, which is in my name and that of the noble Baroness, Lady Lister of Burtersett.

Amendment 31A arises out of the concerns that have been expressed at paragraphs 48 to 53 by the Joint Committee on Human Rights in its eighth report of this Session. The concern is that, in cases where a person is resisting deportation on human rights grounds, Clause 12 will allow the Home Secretary to certify that the person concerned may be removed from the United Kingdom because there is not a real risk of serious irreversible harm and the individual would then be able to pursue the appeal against deportation only from abroad. The Government say that judicial review will be available to such a person to challenge the removal decision while the appeal is pending.

The JCHR has expressed its concern about whether judicial review will provide a practical and effective means of challenging the certification by the Secretary of State that the appeal can be heard from abroad. The JCHR has drawn attention to the Government’s proposed changes to judicial review to restrict its availability and has emphasised the reductions in legal aid. The Joint Committee returned to this subject in its 12th report, published on 26 February.

I share the concerns that have been expressed by the JCHR, and I would add that it is more than a little ironic that the Government’s policy has hitherto been to reduce the number of judicial reviews in the immigration context on the basis that appeals are much quicker and cheaper, and yet now the Government are saying that the individual’s protection will lie in a judicial review. In the light of the reductions in legal aid and the changes that the Government are proposing to judicial review, there are real concerns about whether or not an effective practical remedy will remain available to the individual.

I want to add one specific point to those that have been made by the JCHR. In cases of this kind, a claimant for judicial review will vitally depend on information and representations from interveners; that is, expert bodies that regularly assist the court—sometimes in writing, sometimes through oral submissions—for example, by explaining to the court the practical conditions in the foreign state to which the person concerned is going to be deported.

Your Lordships will know that Clause 51 of the Criminal Justice and Courts Bill, which is currently before the other place, will oblige the court, other than in exceptional circumstances, to order an intervener to pay the costs incurred by the other parties as a result of the intervention—surprisingly, whether or not the intervention assists the court and, indeed, whether or not the party seeking costs from the intervener has succeeded in the judicial review. Does the Minister share my concern that, unless amended, Clause 51 of that Bill will inevitably deter interventions, which are vital in this type of case, and make it much more difficult for a person covered by Clause 12 of this Bill to bring an effective claim for judicial review? What assurances can the Minister give the Committee in response to my concerns and those set out more fully in the JCHR’s reports?

Photo of Baroness Lister of Burtersett Baroness Lister of Burtersett Labour

My Lords, I support Amendment 31A. I am very grateful to the noble Lord, Lord Pannick, for speaking to it on behalf of the JCHR. As he has shown, he is much better placed to do so than I would have been as a non-lawyer. There is not much more to say about it. I will just underline what the JCHR said, which was:

“In the absence of legal aid, we do not consider that an out of country appeal against deportation on the grounds that it is in breach of the right to respect for private and family life is a practical and effective remedy for the purposes of Article 8 ECHR and Article 13 in conjunction with Article 8”.

Support also comes from the briefing we have received from ILPA, which underlines that for those who are unable to pay for legal representation and are therefore left to pursue their appeals by themselves, seeking to do so from outside the UK would be especially and in many cases prohibitively difficult. The absence of a legal representative at the appeal hearing and to assist in the collection, preparation and presentation of evidence is likely to spell the end of what little prospect there may have been in the small minority of cases where removal pending appeal had not itself spelt, in Lord Justice Sedley’s words,

“the end of the appeal”.

My preference would be for our amendment to prevail but, as a fallback, I would certainly support the amendment moved by the noble Baroness, Lady Hamwee, in respect of children. I will be speaking about children’s best interests in a moment, but a very good case has been made for this amendment by the Refugee Children’s Consortium and others. I will quote a case study that the consortium has provided, which states:

“The Home Office detained and planned to deport Christine, a single mother who had served a criminal sentence. Her two children were left in the care of their elderly and seriously ill grandfather. Her 15 year old daughter ‘Beth’ left school and missed her GCSEs while caring for her brother and grandfather. She struggled to look after her seven year old brother, who has very limited motor control and severe behavioural problems. A children’s services assessment found that the younger child was at risk of emotional and physical harm; he was later hit by a car while playing alone in the street. The children’s welfare was not taken into account by the Home Office, but after the mother’s release on bail she was reunited with her children and successfully appealed her deportation through the courts”.

The point made is:

“If Clause 12 becomes law, parents in Christine’s situation may be deported before they can appeal and her children would be separated from their mother”.

That is a horrendous example. If she had been deported, what would have happened to that family?

Photo of Lord Bourne of Aberystwyth Lord Bourne of Aberystwyth Conservative 5:15, 5 March 2014

My Lords, I move to resist these amendments and support Clause 12 of the Bill. The effect of Clause 12 means that deportation may be immediate and not suspensive, unless the Home Secretary feels that there is a real risk of serious, irreversible harm to the appellant pending the appeal. I believe that that will apply only in a very limited number of cases. That does not mean that it is not serious for those cases, but could the Minister in responding give some estimate of the number of cases that it is likely to affect? The other important point in relation to Clause 12 is that the Home Secretary has to be convinced that the deportation is conducive to the public good and has to certify that it is consistent with our human rights obligations. Those are two very important qualifications. That is worth stressing.

First, the case for Amendment 31A was persuasively put, but it removes the clause entirely from the Bill and would mean that these out-of-country appeals would become in-country appeals. Given those limitations on the Home Secretary’s ability to act, that would be entirely wrong.

On Amendment 31, again, I understand the points made by my noble friend Lady Hamwee. They were very well put and no doubt prompted by humane considerations that I identify with. However, in addition to the fact that it undermines the ability of the Home Secretary to act where it is conducive to the public good, there are two other fundamental points to be made here. First, in relation to this particular amendment, there is no limitation on how long the child has been in the United Kingdom. They could have been here a matter of weeks or days, or even hours. I appreciate that that is in terms of the framing of this particular amendment, but it is a serious flaw.

In addition, and perhaps more fundamentally, there is the issue of whether children will be brought over to appellants where that is certainly not in the best interests of the child. It may well be in the best interests of the child to remain with other family members—possibly the other parent—overseas in their home country. I realise that that is an unintended consequence of the amendment, but it could well be the case. For those reasons, I am very much against the two amendments.

Photo of Baroness Smith of Basildon Baroness Smith of Basildon Opposition Deputy Chief Whip (Lords), Shadow Spokesperson (Home Affairs)

My Lords, as I understand Clause 12, it is all about dealing with appeals and provides a power for the Secretary of State to certify that to require an appellant who is liable to deportation to leave the UK before their appeal is determined would not cause irreversible harm, in which case that person can appeal only from outside the UK. We do not oppose the clause as a whole but these amendments are very useful in trying to probe the intention and practicalities. I have a few questions for the Minister.

I read Hansard from the other place, where questions were raised by my colleague David Hanson. I do not really feel that all the answers given fully addressed the questions to my satisfaction. It would be useful if the noble Lord could help address those. My understanding is that when the Bill was first introduced into the Commons it referred only to foreign criminals, but was then later amended to include all those liable to deportation. Mark Harper, who was then but is no longer the Minister, explained that this included,

“individuals who were being deported from the UK on the ground that their presence would not be conducive to the public good”.—[ Official Report , Commons, Immigration Bill Committee, 5/11/13; col. 205.]

That was not in the Bill originally: it was introduced at a later stage.

When the then Minister was pressed on this, he gave a couple of examples such as a gang member or a member of a serious organised crime syndicate. I would not expect the Minister here to give an exhaustive list, and I am not asking for one, but the clause gives considerable discretion to the Home Secretary, or any future Home Secretary, who can determine who is deported under that definition. I should just like to probe further to get more information from the Minister about how that would apply and who it would apply to, but also the grounds on which, and how, the Home Secretary would make that judgment.

That is a very important point; there is a lack of clarity as the Bill stands. At the time, the Minister said that the numbers would be very small, but if the Government bring forward a clause such as this, they must have a reason for doing so. I should expect them to have some idea of the kind of number—I would not for a moment expect an exact number—of cases they expect the provision to apply to. I would like to know the reasons why this was brought forward in the first place and why the change was made from criminals to those who would not be conducive to the public good.

Another issue that has been raised is about the family members of those who have not been convicted of a crime but who have been deported under the clause. The Minister in the Commons said that he would write on that issue. He may have written to colleagues in the other place, but I have not seen his response. On removals, I would like to know the position of family members. The point has already been made about children, but there will be other vulnerable family members. What will be the position of family members, including vulnerable ones? What information will they be given? What happens if the person has been deported and then returns to the UK when they win their appeal? Indeed, will they be allowed to return to the UK if they win their appeal, or will they have to make a separate visa application to return?

I find a fair bit of uncertainty in the clause, and we lack information as to exactly how it will work. I should be grateful for further clarification from the Minister.

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Lords Spokesperson (Attorney General's Office), The Advocate-General for Scotland, Deputy Leader of the House of Lords, Lords Spokesperson (Scotland Office), Liberal Democrat Leader in the House of Lords

My Lords, I again thank my noble friend Lady Hamwee for moving her amendment and raising the issues which arise under Clause 12.

At present, all appeals where there is a human rights claim suspend deportation unless the claim can be certified as clearly unfounded. The powers introduced by Clause 12(3) mean that those facing deportation, including foreign criminals, may be deported, and their appeal heard while they are out of the country, if the Secretary of State certifies that that would not breach the UK’s obligations under the European Convention on Human Rights—a point well made by my noble friend Lord Bourne of Aberystwyth. This is intended to build on the Crime and Courts Act 2013, where the Government made similar provisions for out-of-country appeals in national security deportations. The serious irreversible harm test is one used by the European Court of Human Rights when it decides whether an individual deportation must be suspended, and also in its rulings on what types of claim must be granted an in-country appeal. Amendment 31 would limit the scope of the power to those who are being deported who do not have a child in the United Kingdom, while Amendment 31A would remove the power entirely from what would become Section 94B of the Nationality, Immigration and Asylum Act 2002.

I reassure the Committee that the clause will impact only on a very small cohort of cases—those whose actions and behaviour is non-conducive to the public good—and that in limiting the power to deportation cases, the Government are acting in a proportionate way, and not going as far as European Court of Human Rights cases allow. I assure the Committee that by framing the provision in this way, an arguable asylum claim would never qualify for certification under the power. The Secretary of State cannot use the new power where there is an arguable risk of a breach of Article 2 or Article 3 of the European convention.

Equally, the drafting of the Bill means that this power will not be available for those whom the Government are seeking administratively to remove for the purposes of immigration control—such as illegal entry or overstaying a visa, although ECHR case law would in fact have allowed such an approach.

A deliberate decision has been taken to make the power available only for a small cohort of cases where the individual’s actions—the action of the person for whom certification for deportation is relevant—the vast majority of whom will be convicted criminals. I will come on to the point raised by the noble Baroness about others. This applies if the individual’s actions mean that the Secretary of State considers that their presence in the United Kingdom is not conducive to the public good. Perhaps I may illustrate the size of the issue for the Committee. According to Ministry of Justice figures, in 2012-13 the Asylum and Immigration Tribunal received 1,800 appeals against deportation, which included a number of miscellaneous appeals. This change would have impacted on less than 2% of the appeals that the tribunal received that year.

The Government would not seek to remove family members of those whom we are seeking to deport if they have immigration status in the UK in their own right; for example, if they are an EEA national exercising treaty rights or individuals with indefinite leave to remain, or have valid leave as a student. Even in the rare cases where the Government seek to deport family members along with the principal, for example because their status in the UK is based solely on their relationship with the deportee, this clause does not allow the appeals of dependants to be certified: they will be suspensive. The power is also a permissive one in that the Secretary of State may certify appeals but is not required to. This will allow cases to be considered on their individual facts and ensure that the Government complies with their duty to consider the best interests of the child as a primary consideration in immigration decisions.

The noble Baroness asked what would happen if a person wins their appeal. If an individual wins an appeal from abroad, the UK Government will facilitate their re-entry into the United Kingdom.

In summary, the power will be used only where an individual’s own conduct, such as criminality, leads the Secretary of State to consider that their presence is not conducive to the public good. The clause is limited and tightly defined to ensure that only those who have caused or are trying to cause harm are deported from the country quickly.

Photo of Lord Woolf Lord Woolf Crossbench

Would the Minister be good enough to indicate what “facilitate” means? Does it mean that the Government are going to pay their costs of returning, as used to be the practice?

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Lords Spokesperson (Attorney General's Office), The Advocate-General for Scotland, Deputy Leader of the House of Lords, Lords Spokesperson (Scotland Office), Liberal Democrat Leader in the House of Lords

I am grateful to the noble and learned Lord. Clearly, there will be an opportunity to challenge the decision to certify taken before the deportation took place. We do not believe that there would be a liability to pay compensation if an appeal were successful. I think that I have a fuller answer somewhere on that particular point; I know that I have read it. If I do not get it in my hand before I sit down, I will certainly write to the noble and learned Lord. And here it is. If an individual wins at appeal, they will be entitled to return to the United Kingdom and the United Kingdom Government may pay for their airfare, which will be considerably less than the cost of detaining them while waiting for their appeal. I am grateful to the noble and learned Lord for his forbearance on that.

I was trying to get to the point at which the Baroness, Lady Smith, asked about the original Bill being amended in the House of Commons. The provision as it originally stood stated “criminals”, but that was extended because the Government realised on reflection that this definition would leave out a cohort of harmful individuals who should not have a suspensive right of appeal. That could include individuals who are being deported from the United Kingdom on the grounds that their presence is not conducive to the public good, a broader judgment than automatic deportation on the grounds of a single offence. For example, they could be gang members where witness intimidation and a culture of silence means that there has not been a successful prosecution but there is compelling evidence about their conduct that can be used in an immigration decision. The Home Secretary would consider the intelligence against a person and on the basis of that intelligence deport him as his presence in the UK would not be conducive to the public good.

A case is certified for the Special Immigration Appeals Commission on the basis that it has been taken considering secret intelligence, so it does go wider. My right honourable friend Mark Harper gave examples in the other place of where there may be good information and intelligence but, for reasons possibly to do with witness intimidation, it has not been possible to bring a prosecution. Obviously, this can be tested in any appeal which takes place.

I turn to Amendment 31, which was moved by my noble friend. The amendment would mean that this group of cases, of people whose presence in the UK is deemed harmful, would be able to use a child—who may have been in the UK for only a matter of days or weeks, because there is no definition of what a qualifying child would be—to avoid certification of their appeal and their early departure from the UK. They would be able to use the presence of that child even if they were not in fact responsible for caring for the child—who might live somewhere else or with other family members.

It is of course right that the best interests of the child should be a primary consideration; there will be groups of amendments later where we look again at the importance of children in immigration decisions. There will no doubt be cases where deportation appeals are not certified because of the risk that serious irreversible harm might be caused to a child. I reiterate that the power here in the hands of the Secretary of State is a discretionary one, but having a child in the UK at the time of certification should not in itself be a trump card. Each case should be considered on its individual merits.

As the noble Lord, Lord Pannick, indicated, the effect of passing Amendment 31A would be to remove the subsection from the Bill, thus retaining in-country appeal rights for convicted criminals and others whose presence in the UK was not conducive to the public good. I have set out the background as to why the Government believe that it is important that the Secretary of State should have this power.

The noble Lord and the noble Baroness, Lady Lister, raised the issue, as reflected in the report of the Joint Committee on Human Rights, of where the Bill’s provisions on non-suspensive appeals and government reforms to legal aid allegedly collide. I shall set out some of the background, the purpose and the effect of the Government’s reforms to legal aid. I have some déjà vu from our debates during the passage of the Legal Aid, Sentencing and Punishment of Offenders Act. The scope of the legal aid scheme has recently been settled, and the Government have no plans to further extend its scope beyond the high-priority matters that Parliament has extensively debated and agreed. The matters on which an individual is entitled to claim civil legal aid are set out in the 2012 Act, which came into force on 1 April last year.

Under the existing legislation, legal aid is restricted to the highest-priority cases—for example, where people’s life or liberty are at stake; where they are at serious risk of serious physical harm or immediate loss of their home; or where their children may be taken into care. The Government consider that limited legal aid resources should be targeted at those cases where they are needed most if the legal aid system is to command public confidence. Without unlimited funding—if we had unlimited funding it might be a different debate—the

Government must target legal aid where it is needed most. Providing legal aid for asylum seekers, for example, or victims of trafficking in domestic violence are where legal aid resources have been targeted. Proposals for further legal aid reform, including the new residence tests, support the provisions in the Bill to make it harder for those unlawfully in the UK to prolong their stay here. The British taxpayer should not be expected to fund litigation brought by those who are in the UK unlawfully or indeed who are not in the country.

Lastly, and importantly, any individual who is excluded from civil legal aid as a result of the test will still be able to apply under the exceptional funding scheme, which ensures that legal aid will continue to be provided where a failure to do so would breach the applicant’s rights to legal aid under the European Convention on Human Rights or EU law. In immigration appeals, there is no legal aid available for appeals brought on the grounds that deportation from the UK would be a breach of Article 8. This is the case whether the appeal is brought in the UK or outside it. If a person is deported from the UK using the new certification power in the Bill, they may appeal from overseas and legal aid remains unavailable. If a person deported does not have the means to instruct lawyers to present their appeal, they may have family or friends in the UK who can make representations on their behalf. This is particularly so in the context of this certification power, which will be applied principally to Article 8 cases where the appellant claims to have family or private life in the UK. An appeal can also be considered on papers without a hearing. Indeed, the immigration tribunal has years of experience of determining cases in this way, and does so with thousands of cases every year. It would certainly be the case that a person deported would have an opportunity to make their case in that way.

Ultimately, I repeat, the power is a discretionary one. It will be applied only where there is not a risk of serious irreversible harm. It will therefore not be applied in all Article 8 cases. If there were exceptional circumstances, the power would not be applied. Each case will be carefully considered, with a full account of the specific circumstances of the person deported being considered by the Home Secretary.

The noble Lord, Lord Pannick, referred to the Criminal Justice and Courts Bill in the other place. We are getting to an interesting situation. We are contemplating the impact of the consequences of two pieces of legislation, neither of which has been passed, and one of which has not even come to your Lordships’ House. I think the Criminal Justice and Courts Bill has had only a Second Reading in the other place. Clearly, I will look at what the noble Lord, Lord Pannick, said, but it would be presumptuous to presume—and would cause trouble for me and my colleagues in future—that your Lordships would nod through the Bill as it currently stands. I cannot think for a moment that the noble Lord, Lord Pannick, and several other noble Lords will not be addressing it. I will look at what the noble Lord said in that regard.

My noble friend Lady Hamwee mentioned that Amendment 32 is a probing amendment. It would make serious and irreversible harm the definitive test for the non-suspensive certification decision. I am grateful to my noble friend for this amendment. I hope I can reassure her that there is no difference of principle between us. The wording proposed by the Government would mean that the serious irreversible harm test is an example of when an appeal could be certified on the basis that removal pending the outcome of the appeal would not contravene an appellant’s human rights. The amendment before us now would mean that this test would be the only possible test.

I urge the House to retain the flexibility of the current wording. The test of serious irreversible harm is the test currently used by the European Court of Human Rights, but there is always the possibility that the European court will adjust its approach. If it does, the Government would want to be able to keep pace with the jurisprudence of the European court rather than lose the ability to invoke this power. The fact that there is no exhaustive description of the possible tests merely reflects what is intended to be a pragmatic point in the drafting. The amendment would set the certification test as serious irreversible harm for all time, and therefore if case law were to evolve, changes to primary legislation would be required, and until that happened and could be passed, the power might prove unworkable. With these explanations, I urge my noble friend to withdraw her amendment.

Photo of Baroness Hamwee Baroness Hamwee Liberal Democrat 5:30, 5 March 2014

My Lords, I think that when I introduced Amendment 32, I acknowledged that it is not an amendment that I want but it was a convenient way of probing.

On the legal aid point, I cannot resist saying that a child cannot choose his parents. If a child finds that he has a parent who is a criminal or someone whose presence the Home Secretary regards as not conducive to the public good, that is not the child’s fault.

I must apologise to the noble Lord, Lord Pannick, and the noble Baroness, Lady Lister. I misread the order in which their names were given on the amendment. I saw a look crossing the noble Baroness’s face showing she that was thinking, “What am I expected to do now?”.

The noble Lord, Lord Bourne, referred to being conducive to the public good. There is an issue of balancing interests here. I think there is a very strong argument that the interests of the child are also a public good. I take the point that he and my noble and learned friend made about there being issues about how long the child in question had been in the UK, whether the parent had caring responsibilities and so on. I am conscious that there could be a danger of a child being used as a pawn in this situation.

The Minister talked about circumstances where there might be suspensive certification and so on, and Hansard will certainly bear being read and reread. I come at this from preferring to reverse the positions. Rather than the legislation allowing the Secretary of State to ensure that something does not happen, the Bill should ensure that it does not happen with a discretion the other way around—in other words, reversing it. I am probably being a bit confusing in saying that because I am not entirely clear in my own head about how that would look. I will read Hansard to try to understand the points a bit better.

I apologise that I had not warned my noble and learned friend that I would ask him about whether the Government have assessed the impact on children settled in the UK in these circumstances. If he is not able to answer that point now, I wonder whether it might be pursued after this stage. He is agreeing, and I am grateful. I beg leave to withdraw the amendment.

Amendment 31 withdrawn.

Amendments 31A and 32 not moved.

Clause 12 agreed.

Clause 13 agreed.

Clause 14: Article 8 of the ECHR: public interest considerations

Amendment 33

Moved by Baroness Lister of Burtersett

33: Clause 14, page 12, line 25, at end insert—

“(za) first, to the best interests of any child affected by a decision as specified in section 117A(1),”

Photo of Baroness Lister of Burtersett Baroness Lister of Burtersett Labour

My Lords, I also speak to Amendments 40, 42, 43 and 45, supported by the noble Lord, Lord Roberts of Llandudno, and the right reverend Prelate the Bishop of St Albans. These amendments are about the best interests of the child. Time and again, your Lordships’ House has promoted and defended the best interests of children, and I hope that it will do so again in the context of this Bill.

Amendment 33 is designed to ensure that the best interests of children are explicit in this part of the Bill so that they are properly prioritised and comprehensively considered by a court or tribunal; and so that it is clear to all decision-makers that the best interests of children affected by these decisions need to taken into account as a primary consideration. Amendments 40, 42 and 43 remove the concept of a “qualifying child”, so as to make clear in the legislation that all children’s best interests must be given proper consideration and weight. In addition, Amendment 43 alters the test in exception 2, concerning deportation of foreign criminals, where there is a genuine and subsisting relationship with a qualifying partner or child so that the effect on family members would have to be “disproportionate” rather than “unduly harsh”. “Unduly harsh” is, I understand, an alien test in the context of considering what is best for a child, whereas “disproportionate” is known and well understood with reference to the balancing act involved in considering interference with family life in EHCR case law. I cannot help but wonder what would constitute a “duly harsh” effect on a blameless child.

These amendments have been suggested by the Refugee Children’s Consortium. I am grateful to it for its briefing. Amendment 33 has also been endorsed by the Joint Committee for Human Rights, of which I am a member, in its second legislative scrutiny report on the Bill. The JCHR’s concern was mainly with the question of “best interests”, and that will be the focus of my remarks, too.

As noble Lords will be aware, the injunction to establish the best interests of children and ensure that they are a primary consideration in all decisions affecting them derives from the UN Convention on the Rights of the Child, its general comments and judgments in both the European Court of Human Rights and the UK Supreme Court. Clause 14 fails to make this injunction explicit and does not reflect established case law on children’s best interests. In particular, it fails to highlight the importance that must first be accorded to understanding the best interests of the child, and their weight, before going on to consider any other countervailing public interest factors.

I emphasise that this is not an argument that children’s best interests are some kind of a trump card. I repeat: it is not arguing that they are a trump card that overrides these countervailing public interest factors, only that they must be a primary consideration in the assessment of each individual case. What these means was spelt out in the landmark Supreme Court judgments, ZH (Tanzania) and HH. In the ZH judgment, it was noted that in making the proportionality assessment under Article 8, the best interests of the child must be a primary consideration. This means that they must be considered first. They can, of course, be outweighed by the cumulative effect of other considerations.

In HH, Lord Justice Kerr—the noble and learned Lord, Lord Kerr—stated that best interests,

“must always be at the forefront of any decision-maker’s mind … This calls for a sequencing of, first, consideration of the importance to be attached to the children’s rights (by obtaining a clear-sighted understanding of their nature), then an assessment of the degree of interference and finally addressing the question whether [the government’s action] justifies the interference. This is not merely a mechanistic or slavishly technical approach to the order in which the various considerations require to be evaluated. It accords proper prominence to the matter of the children’s interests”.

Amendment 33 does no more than make that explicit. It is a principle that the Government accept, as they made clear both in the Public Bill Committee and in their correspondence with the JCHR about the relationship between this legislation and the duty under Section 55 of the Borders, Citizenship and Immigration Act 2009, to have,

“regard to the need to safeguard and promote the welfare of children who are in the United Kingdom”.

The Committee welcomed that, but despite the Government’s reassurances, it considers that the Bill should be amended to,

“remove any scope for doubt about the effect of the Bill on the s. 55 children duty, by requiring the best interests of the child to be taken into account as a primary consideration”.

In reaching that conclusion the Committee drew attention to a recent UN High Commissioner for Refugees audit of Home Office decision-making, which found that in many family asylum cases the analysis of children’s best interests was piecemeal and not always specific to the child’s individual characteristics or situation. Among other things, the audit found that within Home Office procedures there is no formal and systematic collection or recording of the information necessary for a quality best-interest consideration, that an analysis of the child’s safety was rarely undertaken, and that confusion has arisen in relation to the new family

Immigration Rules. That does not install confidence in how seriously and effectively children’s best interests are being considered in practice, even under existing legislation. Can the Minister say what consideration has been given to the implications of this audit for the Bill, and what action is being taken in response to it?

Another insight into the inadequacy of Clause 14 as it stands comes from the former Home Office Minister Sarah Teather, now a colleague on the JCHR. On Report in the Commons, she expressed her frustration that its wording,

“undermines the work we did to end child detention and put in place in the Home Office a practice of considering the best interests of children”.

She found it deeply and profoundly confusing, not least as it,

“appears to imply that certain children are somehow invisible”.—[ Official Report , Commons, 30/1/14; col. 1075.]

The charge of invisibility is also relevant to the question of what constitutes public interests, which lies at the heart of Clause 14. As it stands, the clause fails to recognise that promoting and protecting the interests of children, which is rightly no longer seen as by public policy as a purely private matter, is in itself a public good—a point just made by the noble Baroness, Lady Hamwee—and therefore of public interest. In HH, the Supreme Court held that there is,

“a strong public interest in ensuring that children are properly brought up”.

Does the Minister agree with that sentiment, and if so, would he also agree that the kind of amendment proposed would dispel any impression that children’s interests are being treated as no more than personal and private interests?

Finally, Amendments 40, 42 and 45 remove the category of qualifying child, which excludes from consideration any child who is not a British citizen or who has not lived in the UK for a continuous period of at least seven years, which of course includes any child aged under seven. The JCHR asked how that is compatible with the obligation in the UN Convention on the Rights of the Child to have regard to the best interests of the child as a primary consideration. It asked whether the Section 55 duty would still apply to children who do not fall within the definition of a qualifying child. In their response, the Government confirmed that they would, and that is very welcome. They also confirmed that they would update guidance to front-line officials without addressing the specific point that concerned the committee—that is, the need for such guidance to provide an explanation of how the Bill’s provisions concerning the public interest considerations relevant in cases concerning Article 8 of the ECHR are to be read alongside the Section 55 children duty. I would be grateful if the Minister could give that assurance now and if he could repeat, so it is on the Hansard record, first, that the Section 55 duty will apply to children who do not fall within the qualifying child definition and, secondly, that as confirmed in the Minister’s very helpful response to issues raised by other noble Lords at Second Reading, there will still be a requirement to consider the best interests of a child in the UK in all cases.

These amendments, of course, go further. I want to question why the distinction between qualifying and non-qualifying is being made at all. I emphasise again that I speak here as a non-lawyer. In response to the JCHR, the Government justified it on the grounds that children aged under seven would not have developed attachments beyond the parent and the home such as to make it unreasonable to expect the child to leave the UK, citing justification E-A Nigeria, although there the court was referring to children from birth to only four, not seven. In the Public Bill Committee, the Minister said that a child who,

“has reached the age of seven … will have moved beyond simply having his or her needs met by the parents”.—[ Official Report , Commons, Immigration Bill Committee, 5/11/13; col. 216.]

Surely, that could apply to a child aged five or six, too. It is a long time ago since I was that kind of age, and the same would apply to other noble Lords. I remember very little from my childhood, but one thing that I do remember is that I was absolutely devastated when my best friend moved away. I had no control over it; she was like a sister to me—I was an only child. What happens to only children who have made serious attachments to other children in their neighbourhood? That matters a lot. I can still remember the sense of pain that I had as the removal van drove away from two doors down. Noble Lords should not underestimate what it means to a child to lose that kind of attachment, however young the child. Could the Minister explain the rationale behind the cut-off at seven? I know that it mirrors an earlier concession, but that is not sufficient justification.

Furthermore, the Government’s position ignores the complexity of cases where, for example, parents may be separated and children often face the impossible choice between leaving behind one parent in the UK and being split from the deported parent for the rest of their childhood. More generally, BID’s study of children separated from parents for the purposes of immigration control painted a picture of children suffering nightmares and insomnia, crying frequently and losing weight—and this included some younger children.

To return to the simple question of the best interests of the child, as I have said, I do not believe that there is any disagreement here on the basic principles involved. The amendment would help to provide a clarity and consistency that the Government have themselves stated that they wish to achieve with Clause 14 in a letter to the JCHR, and I think elsewhere. I hope that the Minister will be willing to take away the amendment and come back at Report with a government amendment that would help to satisfy their critics that they genuinely want to ensure that primary consideration is given to the best interests of children. I beg to move.

Photo of Lord Roberts of Llandudno Lord Roberts of Llandudno Liberal Democrat 5:45, 5 March 2014

My Lords, I speak wholeheartedly in support of the noble Baroness, Lady Lister, who I would call our noble colleague. I thank her and the Refugee Children’s Consortium for all they work they have done in putting these amendments together. I want to stray, as I do sometimes, to the words of David Lloyd George in 1919, when he said that he wanted to build a world,

“fit for heroes to live in”.

We want to build a world fit for children to live in. That is what we aim for and that is why here, as elsewhere, we are emphasising the best interests of children. I do not need to speak to the amendments at great length as the arguments have already been well presented to us by the noble Baroness, Lady Lister.

Amendment 33 would require that the courts must first establish what are the best interests of any affected child before going on to consider other factors. Amendments 40, 42 and 45 would take into consideration children who have been in the UK for less than seven years. Why should a child not qualify for family rights just because they have been here for less? What about children who are under the age of seven? How should we respond to their needs? They do not fall into the Bill’s current definition of qualifying children whose welfare must be taken into account.

Mention was made of the Joint Committee on Human Rights, which this week published its second legislative scrutiny report. The report stated:

“We welcome the Government’s acceptance that a deprivation order should not be made without taking full account of the impact on the whole family unit, and with regard to the best interests of any child affected. To ensure that the best interests of the child are treated as a primary consideration, as required by Article 3 UNCRC, we recommend an amendment to the Bill which requires the Secretary of State to take into account the best interests of any child affected when deciding whether to make a deprivation order under the new power”.

As has already been mentioned, there is an impact on so many people in so many different ways. There is the impact on fostered children. Clause 14 invites judges to consider whether an individual has a genuine and subsisting parental relationship with a child when deciding whether to deport or remove them. However, this does not take into account children who are fostered. We will speak about them later in Committee. The removal or deportation of their carer would have serious consequences for those children. That should be taken into account.

The Government are arguing that it will normally be straightforward for children who have lived in the UK for less than seven years to accompany their parent and adapt to life abroad, but that ignores the fact that, in two-parent families, the parents may well be divorced. Little children will have to face the appalling choice of leaving one parent behind in the UK or being split from the removed or deported parent for the rest of their childhood. The organisation Bail for Immigration Detainees produced a report in 2013 called Fractured Childhoods. We should all look at that as it contains some compelling and powerful examples.

Why, if the Government believe that children’s best interests will be properly considered within Clause 14, should not the need to safeguard children be made explicit in the Bill?

Photo of Lord Avebury Lord Avebury Liberal Democrat 6:00, 5 March 2014

My Lords, Clause 14 circumscribes the freedom of the courts to interpret Article 8 of the ECHR dealing with the right to respect for private and family life. We know from the Minister’s reply to an earlier amendment and from paragraph 18 of the letter that he wrote to noble Lords after Second Reading that there are to be further restrictions in the rules and guidance about what the courts can do regarding Article 8. This clause in effect instructs the court or tribunal which is required to determine whether a decision to remove or deport someone breaches Article 8 to have regard to considerations which are set out at some length. In particular, it invites the court to consider factors that could make the best interests of the child less than paramount in deciding whether the child’s family should be removed.

The noble Baroness, Lady Lister, mentioned the case of ZH (Tanzania), in which a child’s best interests lay in remaining in the UK, and the question was whether the carer should be removed. In that case, the noble and learned Lord, Lord Kerr, said:

“What is determined to be in a child’s best interests should customarily dictate the outcome of cases such as the present … and it will require considerations of substantial moment to permit a different result”.

It seems to me that the Government are saying to the courts that in future they should decide against the appellant where the circumstances are similar to those in ZH, although, of course, it would be possible that, having considered the factors listed in Clause 14, the courts could find that the “substantial moment” test had not been satisfied. Possibly, too, if our own courts throw out carers wholesale, even where the best interests of the child dictate that they should be allowed to remain, a different view will be taken in Strasbourg. I would like to know whether the Government thought about that in drafting Clause 14.

The doctrine of “margin of appreciation” allows states a degree of discretion when taking legislative action in the area of a convention right, but the limits of discretion are defined by case law. Only a narrow margin of appreciation is permitted where a particularly important facet of an individual’s identity or existence is at stake—see Evans v UK—and, perhaps even more closely relevant, where an “intimate aspect of private life” is at stake under Article 8—see Dudgeon v UK, where it was ruled that there must be particularly serious reasons before interference on the part of public authorities can be legitimate in those cases.

The Children’s Commissioner wrote a letter to the then Minister for Immigration in August last year about the operation of the Immigration Rules, and some of the matters that she raised then are directly relevant to this clause. Article 9(1) of the CRC provides for a child’s right not to be separated from his or her parents other than in strictly defined circumstances and where it proves necessary in the child’s best interests. There is a positive obligation on the state to ensure that a child is not separated from its parents unless the child’s best interests require it. The commissioner is now considering the effect on children of this clause, and it would be useful to know whether she was consulted about the drafting.

I am concerned that this clause undermines our obligation under the CRC and that it may lead to unnecessary litigation, damaging to our reputation at the European Court of Human Rights. I hope that it will be reconsidered before Report.

Photo of Lord Pannick Lord Pannick Crossbench

My Lords, I add my support to the general concerns expressed so eloquently by the noble Baroness, Lady Lister. I have two questions for the Minister. First, can he confirm, as I assume he will, that nothing in Clause 14 is intended to detract from the important principle of law that the best interests of the child are a primary consideration for decision-makers in this context? It is important for Pepper v Hart purposes that the noble and learned Lord makes the position unambiguously clear.

Secondly, before Report, will the Minister please undertake to give further consideration to the advantages of referring in Clause 14 to the best interests of the child? I ask that question as I have some difficulty in understanding how the test in new Section 117C(5)—that is, exception 2: the test of whether the effect of deportation on the child would be unduly harsh—is compatible with looking to the best interests of the child as a primary consideration.

Photo of Baroness Smith of Basildon Baroness Smith of Basildon Opposition Deputy Chief Whip (Lords), Shadow Spokesperson (Home Affairs)

My Lords, this is one of three groups of amendments around Article 8 that we have tabled to Clause 14. I wish to make a couple of brief comments. I want to put on record, and make very clear, that we fully support Article 8. We understand that it is not an absolute right. It is a qualified right and those qualifications also have to be understood. Any interference with that right has to be within those qualifications. However, we share concerns about how Article 8, and those qualifications, have been interpreted in some cases involving foreign criminals convicted in the UK and then put up for deportation. There are problems with criminals who we cannot deport who have committed serious crimes, and where Article 8 has been considered to be used inappropriately, and where the question has to be asked whether the qualifications have been fully considered. The balance is one to be reached by the courts in individual cases, but we consider it right that Parliament should set out how qualified rights should be balanced in different areas.

There is wider concern about the Government’s failure to deport foreign criminals and the gap between the inflammatory rhetoric used on some occasions with regard to immigration issues and the reality of those issues. Since the Home Secretary took office, the number of foreign criminals being released into the community has gone up and the number of people removed from our country for breaking the rules has gone down by 13% in the past three years. I say to the Minister that it is important for the Government to get the basics right before looking at new areas—for example, ensuring that we have the right staff and the right number of staff in place to deal with these issues.

I listened very carefully to the noble Baroness, Lady Lister, and I was relieved when the noble Lord, Lord Pannick, said that he was slightly confused about a contradiction that appears to have arisen in this context. I am a non-lawyer and I was confused as well. I was relieved to hear that lawyers can also be confused about the Government’s intentions in this regard. The noble Baroness, Lady Lister, made a very powerful speech and I will be interested to hear the Minister’s comments on it.

I welcomed the comments of the then Minister, Mark Harper, to the JCHR about the Government’s responsibilities under the UN Convention on the Rights of the Child. There was absolute confirmation that the best interests of the child will be considered. However, other comments have been made that appear to qualify that. That would seem to undermine the concept that the best interests of the child will be considered. I do not mean to be facetious when I say that it sounds as if the best interests of some children will be considered. I do not understand the contradiction between what is in the Bill and the very welcome comments made by the former Minister that the Government will always consider the best interests of the child. How does that conflict, confirm, or work with what is in Clause 14? Confirmation from the noble and learned Lord that the best interests of the child will be considered would be very welcome.

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Lords Spokesperson (Attorney General's Office), The Advocate-General for Scotland, Deputy Leader of the House of Lords, Lords Spokesperson (Scotland Office), Liberal Democrat Leader in the House of Lords

My Lords, I thank the noble Baroness, Lady Lister, for introducing this amendment, and thank those who have raised very important points in relation to children and the best interests of the child.

I crave the indulgence of your Lordships’ House to take a few moments, before I reflect on the specific amendments, to set out briefly what was in the Government’s mind in bringing forward this clause, and how we expect it to operate and what it is expected to achieve. I do so to set it in context for this and the next two groups of amendments.

Article 8 of the European Convention on Human Rights provides for the right to respect for private and family life. As the noble Baroness, Lady Smith, said, it is a qualified right. The individual’s right under Article 8(1) can be outweighed by measures necessary for and proportionate to the legitimate aims under Article 8(2), including protecting the public by deporting foreign criminals and safeguarding the United Kingdom’s economic well-being by controlling immigration.

There is a clear public interest in these aims. These are also matters of public policy which we believe is the responsibility of government to determine, subject to the views of Parliament. Clause 14 will make clear what Parliament thinks is in the public interest in terms of controlling immigration and protecting the public where Article 8 is engaged in an immigration case. It is for Parliament to decide what the public interest requires. It is then for the courts to have due regard to that when considering the proportionality of any interference in the exercise of an individual’s right under Article 8. We believe that is the right approach and that is reflected in how Clause 14 has been framed.

The Committee will recall our debates on the new Immigration Rules on family and private life which were implemented on 9 July 2012. The Immigration Rules, laid before Parliament by the Secretary of State under Section 3(2) of the Immigration Act 1971, are a statement of the normal practice to be followed by the Secretary of State’s caseworkers in making immigration decisions under the statutory framework that Parliament has provided. It is in the interests of a clear, consistent and transparent immigration system in which applicants and the public can have confidence that these rules should enable the Secretary of State’s caseworkers to decide individual cases lawfully and in accordance with the Government’s immigration policy. The courts have agreed the importance of having such a set of rules —for example, in the decision of the Judicial Committee of your Lordships’ House in the case of Huang.

The key test that both the Secretary of State and the courts apply in assessing the Article 8 compatibility of a decision is whether it is proportionate. However, in immigration decisions engaging Article 8, the courts, prior to the July 2012 rule changes, were unable to give proper weight to the Government’s and Parliament’s view of the public interest because the Immigration Rules did not adequately reflect Parliament’s view on how the balance should be struck between the individual right to respect for private and family life and the need for effective immigration control to protect the public and the economic well-being of the United Kingdom.

I shall provide a bit of history. When the Human Rights Act 1998 was commenced in 2000, the rules were amended to require all Home Office staff to carry out their duties in compliance with its provisions, but there was no substantive change to the family or private life part of the rules to reflect how individual rights and the public interest should be balanced. There was no attempt thereafter to align the rules with developments in case law, such as the decisions of the Judicial Committee of your Lordships’ House in the cases of EB (Kosovo) and Chikwamba. Instead, previous Secretaries of State asserted that if a court thought that the rules produced disproportionate results in a particular case, the court should itself decide the proportionate outcome on the facts before it. This approach meant that the courts could not give due weight to the Government’s and Parliament’s view of the public interest under Article 8, as the courts did not know what that view was. It also did not properly reflect the responsibility of the Government and Parliament for determining the public policy framework under which immigration decisions should be taken. Indeed, as I have already said, it left the courts to develop public policy themselves through case law on issues such as the appropriate level of maintenance for family migrants. We do not believe that that was conducive to clear, consistent and transparent decision-making by the Secretary of State’s caseworkers.

It was against that background that on 9 July 2012 the Government implemented major reforms of the Immigration Rules relating to private and family life. The new rules filled the public policy vacuum that had been inherited by setting out the position of the Government on proportionality under Article 8, in the light of existing case law and of evidence such as the report of the independent Migration Advisory Committee on the appropriate level of the minimum income threshold for sponsoring family migrants. The new rules were debated and approved by the House of Commons on 19 June 2012 and were debated by this House on 23 October 2012, following which the noble Baroness, Lady Smith of Basildon, withdrew her Motion of Regret. The new rules set out how the balance should be struck in Article 8 cases between an individual’s rights and the public interest. They provide clear instructions for the Secretary of State’s caseworkers on the approach they must normally take, and they therefore provide the basis for a clear, consistent and transparent decision-making process. The new rules also form the basis for the assessment by the courts of the proportionality under Article 8 of immigration decisions. The Court of Appeal has endorsed the lawfulness of such an approach in the case of MF (Nigeria).

The courts have a clear and proper constitutional role in reviewing the proportionality of measures passed by Parliament and of the executive decisions made under them, and must ultimately decide on what is a proportionate interference under Article 8. I should stress that Clause 14 does not seek to change this proper judicial function. However, it is right that the Secretary of State should expect the courts to give proper weight to the view endorsed by Parliament on how, broadly, public policy considerations are to be weighed against individual family and private life rights when assessing Article 8 in any individual case. The courts themselves have underlined the importance of the view of Parliament on such matters and have confirmed that they will defer to that view where it is known.

However, some judges have since given only limited deference to the new rules, and say that they represent only a weak form of parliamentary scrutiny. The Upper Tribunal has said that,

“Whilst it is open to Parliament to change the law by primary legislation unless and until it does so these”— previous—

“decisions are binding ... and will be followed”.

I hope that I will not embarrass the noble and learned Lord, Lord Mackay of Drumadoon, by quoting him. He said in the case of MS v the Home Secretary in the Extra Division of the Inner House last year:

“The rules are not a statute but merely a statement by the executive of how it intends to exercise powers conferred by statute. Consequently the application of the rules in individual cases is potentially subject to judicial review. Nevertheless, the new rules have been debated in Parliament, which confers a certain degree of democratic approval. Moreover, they are instructions put forward by the minister in a democratically elected government who is charged by statute with the administration of the immigration system. To that extent, too, the rules can be said to result from democratic processes. These are factors which must be given some weight when a court considers the application of the rules, although they cannot be conclusive because the rules do not have the force of statute”.

By bringing forward Clause 14 we seek to invite Parliament to give the status of statute to the rules, which are set out substantially in the same terms as the Immigration Rules that your Lordships’ House debated in October 2012.

The courts have asked for the clearest possible indication, through primary legislation, of Parliament’s view of what the public interest requires. This clause is our response to that invitation. It assists the courts by setting out plainly the weight they should attach to the countervailing public interest in considering Article 8 in an immigration case. Clause 14 introduces a new Part 5A to the Nationality, Immigration and Asylum Act 2002, containing four new sections which require a court or tribunal when determining whether Article 8 is breached in an immigration case to have regard in particular to certain considerations when considering the public interest under Article 8(2). The clause sets out what the public interest requires in immigration cases where there is a qualifying partner or child, and makes additional provision for cases involving a foreign criminal.

I stress that Clause 14 does not encroach upon the proper judicial function of considering whether the Executive’s decision is proportionate—that is, whether the public interest outweighs the Article 8 rights of the individual on the facts of the particular case. Clause 14 will put beyond doubt Parliament’s view of the public interest in immigration cases engaging Article 8. It will, as primary legislation, give the strongest possible weight to that view and require the courts to have regard to it. The Upper Tribunal invited Parliament to legislate on these matters and that is what, through this clause, we are doing.

I am grateful to your Lordships for allowing me to set that out because it provides context on these important issues. Concerns have been raised in the amendment moved by the noble Baroness, Lady Lister of Burtersett, and supported by my noble friend Lord Roberts, on the need to safeguard and promote the welfare of children in the United Kingdom. I also recognise and acknowledge the work of the Joint Committee on Human Rights for its consideration of these issues. The noble Baroness, in moving her amendment, and the noble Lord, Lord Pannick, referred to putting such a provision into the Bill.

However, perhaps it is important to state—I shall say it more than once during my remarks—that in immigration the two main legal provisions that govern our obligations towards children are the United Nations Convention on the Rights of the Child and Section 55 of the Borders, Citizenship and Immigration Act 2009, which is usually referred to as the “children duty”.

These provisions, as interpreted in particular by the Supreme Court in ZH (Tanzania), establish the best interests of the child as a primary consideration in considering proportionality under Article 8. The noble Baroness properly and fairly set that out. She did not claim it to be the paramount interest and said that she was not using the matter as a trump card. There is no dispute between us on that. That interpretation means that the Secretary of State must have regard to the best interests of the child as a primary consideration and ask whether any other considerations outweigh it. Clause 14 is compatible with our legal obligations towards children and has been designed to take proper account of children’s best interests. The Government recognise that as an important consideration, and the Bill reflects that. The clause applies when a court or tribunal is considering Article 8 in an immigration case, and sets out what the public interest requires. These are the countervailing factors that must be balanced against the best interests of the child.

New Section 117B relates to non-criminal cases. We have had regard to the children duty under Section 55 of the 2009 Act, and new subsection (6) sets out that the public interest does not require the removal of a person who has a qualifying child where it would not be reasonable to expect that child to leave the United Kingdom. New Section 117C applies additional public interest factors to foreign criminals. Again, we have had regard to the children duty and subsection (5) provides that, where the foreign criminal has been sentenced to less than four years’ imprisonment, the public interest does not require deportation where there is a qualifying child and the effect of the criminal’s deportation on the child would be unduly harsh. The noble Lord, Lord Pannick, asked whether that was in conflict. We do not believe that it is. I obviously respect the noble Lord’s views and will reflect on that, but we do not believe that it is in conflict, given that ultimately the individual decision on proportionality, taking into account the individual circumstances of a case, will be a matter for the courts.

The test is higher for criminals because of the greater public interest in their deportation. This distinction was accepted by the noble and learned Baroness, Lady Hale, in ZH (Tanzania). Therefore, both the economic interests of the United Kingdom and the prevention of disorder and crime are legitimate factors to weigh in the balance when considering the children duty, while the maintenance of effective immigration control goes to the prevention of disorder or crime as well as safeguarding the economic well-being of the country. However, unsurprisingly, criminality is a weightier factor.

Amendment 33 would require the court to consider, first, the best interests of any child affected by the decision before going on to have regard to other considerations. I am sympathetic to this amendment but I do not believe it is necessary. The Supreme Court found in ZH (Tanzania) that the best interests of children are to be a primary consideration in assessing proportionality under Article 8. It also found that “a primary consideration” is not the same as “the primary consideration”, still less when compared with “the paramount consideration”. The law is clear that the best interests of a child can be outweighed by countervailing factors, including the public interest in controlling immigration and protecting the public.

Case law is also clear that a child’s best interests can be considered in any order in the decision-making process provided that it is considered properly and that sufficient weight is placed on the welfare of the child. The amendment is about process rather than substance and it would, as has already happened, result in technical legal arguments about process rather than substance. We believe that the framing of Clause 14 is fully consistent with the correct legal approach to the children duty. Rather than ignoring or overlooking the best interests of the child, Clause 14 provides very specific protection for a qualifying child, similar to that contained in the July 2012 Immigration Rules, which were debated and endorsed by Parliament.

Amendments 40, 42 and 45 would take out the definition of a qualifying child and bring all children into the scope of Clause 14. However, Clause 14 does not purport to set out how Article 8 will operate in detail in every case. The clause specifically addresses the situation of a “qualifying” child, and it clarifies the public interest where such a child is involved. However—I want to emphasise this as I think I was invited to do so by the noble Baronesses, Lady Lister and Lady Smith, and the noble Lord, Lord Pannick—that does not mean that the rights of other children are ignored. Consistent with Section 55 of the 2009 Act, the Immigration Rules and supporting guidance set out the detail of how the public interest under Article 8 operates in other types of cases. The best interests of a child in the United Kingdom will continue to be a primary consideration in all cases, whether or not the child is a “qualifying” one. I do not think that I can make it any clearer than that for the record.

The Bill defines a “qualifying” child as a child who is a British citizen or has lived in the United Kingdom for a continuous period of at least seven years. I was asked why the period of seven years is in the definition. Clause 14 provides very specific protection. The provision recognises that the passage of time and the level of ties in the United Kingdom that the child may develop over that time may make it unreasonable to expect the child to leave the United Kingdom. However, in cases where the child has lived here for less than seven years, there is not the same private life justification for allowing them to stay. In EA (Nigeria) in 2001, the court said that in the case of very young children from birth to age four, the child is primarily focused on themselves and their parents or carers. It said that very young children do not typically form any deep or strong friendships outside the family, such as will happen as the child grows up and begins to develop more independence.

We have acknowledged that if a child has reached the age of seven, he or she will have moved beyond simply having his or her needs met by the parents. The child will be part of the education system and may be developing social networks and connections beyond the parents and home. However, a child who has not spent seven years in the United Kingdom either will be relatively young and able to adapt or, if they are older, will be likely to have spent their earlier years in their country of origin or another country. When considering the best interests of the child, the fact of citizenship is important but so is the fact that the child has spent a large part of his or her childhood in the United Kingdom.

Photo of Baroness Lister of Burtersett Baroness Lister of Burtersett Labour 6:15, 5 March 2014

I am sorry to interrupt the noble and learned Lord but I thought I would do so now rather than wait until my response at the end of his remarks. I did address the argument concerning the seven-year period—that point had already been made. I asked specifically why, as the noble and learned Lord said, the case refers to children aged four when the period given is seven years. I gave a specific example of how I know personally that a child under seven can have very strong connections outside the family. The Minister has not addressed that point.

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Lords Spokesperson (Attorney General's Office), The Advocate-General for Scotland, Deputy Leader of the House of Lords, Lords Spokesperson (Scotland Office), Liberal Democrat Leader in the House of Lords

My Lords, as I think the noble Baroness alluded to when she moved the amendment, in the Public Bill Committee in the other place my honourable friend Mark Harper, who was then the Immigration Minister, indicated that the age of seven had previously been brought in as a concession —known as DP5/96, from which I assume that it was brought in in 1996—against deportation where children had accumulated seven years of continuous residence. It was withdrawn in December 2008 in favour of a case-by-case approach applying Article 8. However, as we made clear in the debate on the rules, that left it to the courts to develop the policy on what Article 8 required and it led to uncertainty and inconsistency. Therefore, the period of seven years had applied before.

I do not disagree that there may be cases that need to be looked at individually but the important point that we are seeking to make here is that it is for Parliament to indicate what it believes the age of a qualifying child should be. We are saying that in our judgment it should be seven, for the reasons I have articulated. I also indicated that ultimately it will be for the courts to determine the proportionality of a decision. However, passing this primary legislation will give a strong steer and an indication to the courts of what Parliament believes to be in the public interest. That is a judgment that the Government have made. I think I am right in saying that it was in the 2012 rules, which have been considered and which we now invite Parliament to endorse and to put into primary legislation.

The noble Baroness asked whether I could confirm that guidance will be published and how the Section 55 duty will apply in relation to cases considered. I confirm that it is our intention to publish guidance setting out how the best interests of the child will be considered. As I have already said, Section 55 requires the Secretary of State to have regard to the best interests of the child as a primary consideration, and the Bill does not change that.

I will write separately to the noble Baroness, placing a copy in the Library, in response to her query about the response to the asylum report and the consideration of children’s best interests. The Home Office response to the UNHCR report on asylum is still being considered.

Amendment 43 would replace “unduly harsh” with “disproportionate” when considering the effect on the partner or qualifying child of the deportation of a foreign criminal who has not been sentenced to imprisonment of four years or more. However, this would not reflect sufficiently clearly the weight that should be attached to the public interest in the deportation of such a foreign criminal. Nor would it achieve the aim of the legislation, which is to set out clearly how the Secretary of State and the courts should approach the proportionality test, taking account of the public interest as properly determined by government and Parliament.

We believe that the children’s best interests must be a primary consideration. We fully accept that and Clause 14 is carefully designed to reflect that. However, it is simply not the case that a child’s best interests will outweigh every other possible countervailing factor, including illegal immigration and serious criminality. Nor is it the case that the UK is obliged to allow all migrants who are parents to remain in the UK where this is in one child’s best interests, ignoring the interests of other members of the public, including children.

In cases that do not fall within the scope of Clause 14, consideration will still be given to the individual facts of the case having regard to Article 8 and Section 55. Clause 14 does not seek to cover every possible situation in which an Article 8 or Section 55 issue may arise. That would be too complex and unwieldy.

In EA (Nigeria) the court said that, in considering the best interests of a young child, the correct starting point is to assume that it is in the best interests of a child to live with and be brought up by his or her parents unless there are very good reasons why that is not the case. Therefore, where the child is being removed with their parents and as a family to that family’s country of origin, that is not a breach of Article 8 and we believe that it is consistent with the children duty in Section 55.

I hope that the House will agree that technical legal arguments about whether the best interests of a child is “a” or “the” primary consideration, or the order in which various factors must be considered, can be a distraction. The important point is that we comply with the obligation to treat the best interests of the child as a primary consideration. We believe Clause 14 is entirely consistent with that. The noble Baroness’s amendment has afforded me and other parts of the House the opportunity to make that very clear. However, we believe that the amendments would draw lines in the wrong place. For those reasons, I invite the noble Baroness to withdraw her amendment.

Photo of Baroness Lister of Burtersett Baroness Lister of Burtersett Labour 6:30, 5 March 2014

My Lords, I am very grateful to all noble Lords who have spoken in support of the amendment, and to the Minister for setting out the context for this clause and his very full response to the amendments. Before turning to best interest, which is the primary purpose of the amendment, I want to go back to the issue of the “qualifying child”. I still have not heard a justification for the age of seven, other than that it happened to be in a previous concession. However, we do not know why that happened. When I was making the point about how children under the age of seven—let us say between the ages of four and seven, given the court case which referred to the age of four—noble Lords were nodding their heads all around me. Everyone recognises how a young child can develop really important attachments beyond the family. I have not heard any convincing argument against that from the Minister. I hope he will take that away and reflect further on the age of seven. Should we not be thinking about a younger age—say, four—given that court case? The point has been made that the key issue is the age at which children go to school. In this country, children go to school before the age of seven.

The main point of the amendments is the “best interests” of the child. I am perplexed. I thought that there was no disagreement in principle between us. I am very grateful to the Minister for putting things clearly on the record, as requested. He has placed great emphasis on the need for clarity in the Bill. Yet the noble Lord, Lord Pannick, who is not someone to be confused by legislation, is confused by the Bill. The Joint Committee on Human Rights, which is charged by Parliament to advise it on the human rights implications of legislation, is very clear that this needs clarifying in the Bill. I do not think that it would lead into technical process arguments rather than substance arguments. Therefore, while I am pleased to have it confirmed that there is no difference in principle between us, in the interests of clarity and reassurance to a great number of organisations concerned with the interests of children, I do not think that I have heard one convincing argument as to why this amendment or a similar one cannot be accepted.

Despite what the Minister has said, I hope that he will take the issue away and think about it further because I certainly will. I beg leave to withdraw the amendment.

Amendment 33 withdrawn.

Amendment 34

Moved by Lord Mackay of Drumadoon

34: Clause 14, page 12, line 37, at end insert “Welsh or Gaelic”

Photo of Lord Mackay of Drumadoon Lord Mackay of Drumadoon Judge

My Lords, in speaking to Amendment 34, I shall also refer to Amendments 35 to 37, all of which are in my name on the Marshalled List. These amendments seek to amend Clause 14 and arise from points raised with me by the Law Society of Scotland when it considered the terms of the Bill as it was introduced to your Lordships’ House. I should confess that, having listened to the Minister referring to one of my judgments, I have a distinct feeling that I might be hoist by my own petard. Nevertheless, I intend to proceed.

As we are all well aware, Clause 14 is headed, “Article 8 of the ECHR: public interest considerations”. It seeks to amend the Nationality, Immigration and Asylum Act 2002 by introducing a total of four new sections to that Act. All four amendments would take effect in subsections (2) and (3) of new Section 117B to be inserted into the 2002 Act under Clause 14.

Amendments 34 and 35 have been enrolled because the terms of Clause 14 appear to fail to take into account the existence of the minority languages of Gaelic and Welsh, and the status that they respectively enjoy in Scotland and Wales and throughout the United Kingdom. By implication, it appears that the Government have ignored the fact that many who are able to speak one or other of those languages adopt it as their first language and, at the same time, contribute to the economic well-being of the United Kingdom.

It is instructive to have regard to some of the statutory references to the Gaelic and Welsh languages, which appear in legislation enacted by this Parliament and the devolved Parliaments. I shall deal first with the Gaelic Language (Scotland) Act 2005, which is an Act of the Scottish Parliament. The language used in that Act describes it as one whose function is to establish a body with responsibilities exercisable with a view to securing the status of the Gaelic language as an official language of Scotland. Section 1(3) of the 2005 Act provides that the functions of the bòrd set up are to be exercised with a view to securing the status of Gaelic as an official language of Scotland commanding equal respect to the English language.

Section 78 of the Government of Wales Act 2006, which was enacted by this Parliament, deals with the Welsh language. Subsections (1) and (2) of Section 78 place on the Welsh Ministers duties, first, to,

“adopt a strategy (‘the Welsh language strategy’)”, as it is described in the legislation, setting out how it proposes to promote and facilitate the use of the Welsh language and, secondly, to,

“adopt a scheme (‘the Welsh language scheme’)”.

The latter requires to specify the measures that the Welsh Ministers propose to take for achieving the purpose mentioned in Section 78(3) as to the use of the Welsh language in connection with the provision of services to the public in Wales by the Welsh Ministers,

“or by others who … are acting as servants or agents of the Crown, or … are public bodies”.

As set out in subsection (3), the purpose,

“is that of giving effect, so far as is both appropriate in the circumstances and reasonably practicable, to the principle that in the conduct of public business in Wales the English and Welsh languages should be treated on a basis of equality”.

I have listened to what the noble and learned Lord has already said about how the Government are responding to judicial pronouncements about the need to clarify what may lie within the public interest for the purposes of Article 8. However, that raises the question of what the Government considered before they lodged this Bill in the terms in which it currently stands. In particular, it would be of interest to know whether the Government gave any consideration at all to allowing an ability to speak Gaelic or the Welsh language to be considered as equivalent to being fluent in English for the purposes of this legislation. It is particularly of interest because it is very doubtful that if Clause 14 were amended in the way that these two amendments suggest, much abuse could or would be made of such terminology. For these reasons, Amendments 34 and 35 would amend Clause 14 in the terms set out.

I accept that the need for an individual seeking a visa to enter the United Kingdom or an order entitling him to remain here needs to rely on a variety of factors. However, in these circumstances, an ability to speak Gaelic or Welsh being something that could validly be relied on would bear in mind the experience that many of us have in the different parts of the United Kingdom in which we live, where people who are members of an ethnic majority have moved into an area and acquired an ability to speak one of these minority languages and have done so happily over many years.

Amendments 36 and 37 would also amend the terms of new Section 117B(2) of the 2002 Act. As drafted, they provide that persons who can speak English,

“are better able to integrate into society”.

That may be so, but it is not an absolute truth. Accordingly, the amendment is enrolled to delete the word “better” and substitute the words “likely to be” to reflect the reality of the situation. In a similar vein, Amendment 37 would amend the terms of new Section 117B(3) of the 2002 Act to delete the assertion that those who are financially independent,

“are less of a burden on taxpayers, and … are better able to integrate into society”.

It is suggested that there is no necessary connection between financial independence and being better able to integrate into society. For that reason, Amendment 37 has been enrolled in the terms set out in the Marshalled List. I beg to move.

Photo of Lord Roberts of Llandudno Lord Roberts of Llandudno Liberal Democrat 6:45, 5 March 2014

My Lords, I am delighted to support this amendment from another part of the Celtic community. I do so because the Bill says that you can integrate more easily if you speak English, but that is not so in many of our Welsh communities. There are still 600,000 people in Wales alone who speak the Welsh language and in some villages and areas of Wales it is the first language. It is the language of the community, the chapel, the church and the pub. It is their language. If someone came from a distant place and wanted to settle there, they would feel lost. They would need to be able to speak that local Welsh language.

As has already been said, we battle on to maintain the language. About 21% of the people of Wales speak Welsh and the Government of Wales have a Welsh Language Policy Unit, which spends about £14.5 million a year to promote the Welsh language. We also have Welsh television, S4C—S Pedwar C yn Gymraeg—which will claim £90 million to £100 million per year. This is all investment in the language. If somebody came from a distant place to a Welsh village without any knowledge of the Welsh language, you might say that they should learn English. However, we have only one other Welsh settlement of any size in the world, which is Patagonia. That is where 10,000 people speak Welsh and Spanish. What if one of those people—it happens—wanted to become a teacher or a church minister in Wales? They would not be accepted unless the amendment were also accepted by the Committee.

There does not need to be a great fuss about this. We do not have millions of people speaking Welsh in the world, but we do have a certain number who might well be interested in coming to the homeland—to the land of their fathers and grandfathers—and they would not be welcome because they do not speak English. I will not go to Patagonia to invite them to come over immediately, but if this amendment is passed, I would be delighted to go to Patagonia and invite those people from the Welsh tradition to come up.

Photo of Lord Judd Lord Judd Labour

The noble Lord makes a powerful and emotional, in the best sense, statement in favour of the amendment. Will he tell me what its implications would be for an Englishman wanting to settle in that community?

Photo of Lord Roberts of Llandudno Lord Roberts of Llandudno Liberal Democrat

It would not hurt that Englishman in any way at all. We would still allow people who speak only English to come into Wales, but we would allow those who do not speak English but who do speak Welsh or even Scottish Gaelic—we might have one or two from the highlands wanting to come to Wales—to come in. I urge the Minister, as a fellow Celt, who I know has the well-being of our communities at heart, to give a thought to this, although perhaps not in the wording of this particular amendment. Is there no way that we could allow those who do not speak English but who do speak Welsh, Scottish Gaelic or Ulster Gaelic to come along? I am sure that there is a way, and we can show the nations of Wales, Scotland and Northern Ireland that we still consider them brothers and partners in this United Kingdom.

Photo of Baroness Smith of Basildon Baroness Smith of Basildon Opposition Deputy Chief Whip (Lords), Shadow Spokesperson (Home Affairs)

My Lords, I hesitate to engage in this Celtic discussion. I am half Scottish, which might help, and I recently visited Patagonia. All the people in the Welsh community I met there also spoke English, curiously, otherwise we would not have been able to communicate with them.

The amendments highlight something on which I need clarification. This is not the normal legal language that we see in legislation; it seems to be more a statement of fact or opinion. The noble and learned Lord, Lord Mackay, made a powerful point when he said that financial independence was not related to language. I am curious about the evidence base for the statement in the Bill. To be better integrated into society is easier to understand, but is being less of a burden on the taxpayer automatically the case? On what evidence did the Government base that before bringing it forward?

The provisions are confusing because this is not the usual legislative language that we see in Bills such as this. Is there any concern that the courts will not understand how to interpret the decisions that they are making? I am curious about what guidance the Government will provide relating to this specific part of new Section 117B(2).

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Lords Spokesperson (Attorney General's Office), The Advocate-General for Scotland, Deputy Leader of the House of Lords, Lords Spokesperson (Scotland Office), Liberal Democrat Leader in the House of Lords

My Lords, I thank the noble and learned Lord, Lord Mackay of Drumadoon, for this amendment and I thank my noble friend Lord Roberts for his spirited endorsement of it. I readily appreciate the concerns raised by the noble and learned Lord about the provision made by Clause 14 on the public interest in migrants being able to speak English and also in being largely independent. We believe that these are important elements of the provision made by Clause 14 as to the public interest in controlling immigration to safeguard the economic well-being of the United Kingdom under the qualified right to respect of private and family life under ECHR Article 8.

The noble Baroness, Lady Smith, said she thought that the language was not normal for legislation—it might actually be simpler in parts than in some legislation we have grappled with. The reason for that is one that I articulated when I set the scene. With Clause 14, we have basically sought to put in statute the Immigration Rules, which were debated and have been in place since 2012. In some places, the language is not in the usual statutory form because it has been substantially carried through from the Immigration Rules. That also answers the question of whether the courts will have difficulty interpreting it because of that. I do not believe that they should, because they have been interpreting these rules since the middle of 2012. The point is that they will now have, if Parliament so decides, the full force of statute rather than simply being rules. That also answers the point raised by the noble and learned Lord as to whether we had considered Welsh and Gaelic prior to bringing this clause forward. The answer is no, we did not, as this was being lifted from rules that were already there, which stipulated English.

As has been made clear, Amendments 34 and 35 propose allowing a migrant to rely on their ability to speak Welsh or Gaelic, instead of English, when applying for leave to enter or remain in the United Kingdom on Article 8 grounds. I want to make it very clear that I am not a Welsh or Gaelic speaker but that the Gaelic Language (Scotland) Act 2005, to which the noble and learned Lord referred, was brought forward by an Administration in which I was the Deputy First Minister. I do not think anyone can challenge my support for the Gaelic language. As my noble friend Lord Roberts knows, I have a strong affinity with my Celtic colleagues in Wales and have had very many enjoyable Welsh evenings at our party conferences, when the songs have been well sung in Welsh and English.

We believe that a command of English is essential in helping migrants integrate into the life of the UK as a whole and in improving their employment prospects.

That is the case even if a migrant is living in a Welsh-speaking or Gaelic-speaking community. Indeed, the possible consequence of the amendments is that if someone were able to meet a test in Welsh, for example, along with all the other tests, they could get entry into the United Kingdom. Having done that, they might choose to not go anywhere near a small village in Carmarthen or Carnarvon but instead go to Newcastle upon Tyne, despite not really having a word of English.

We do not doubt that Welsh and Gaelic speakers would contribute to the economic well-being of the United Kingdom, but migrants to the UK should be able to speak English to a basic level when they apply to come or remain here. Speaking English is necessary to ensure that a migrant is able to integrate and play a full part in our society. The ability to speak English also reduces the burden on the taxpayer arising from the cost to public services of translating information or guidance into other languages. We do not believe that the inclusion of the Welsh and Gaelic languages in Clause 14 would support that objective. It would not reflect the public interest in reducing taxpayer burdens and promoting integration.

I also ask the House to consider some practical issues involved in making such provision. First, there is no infrastructure to support the testing of ability in these languages on a global basis, even I think in Patagonia —the noble Baroness may know whether we have a consulate there. Secondly, the demand is likely to be very low. There have been no requests for testing in Welsh or Gaelic as an alternative to English since the introduction in November 2010 of an English language requirement for spouses and partners applying to enter or remain in the UK. Thirdly, in view of the likely low demand, the setting up and maintenance of a secure and reliable global network of test providers would be unlikely to be commercially viable. If commercial providers were not willing to offer tests, it would fall to the Home Office to set up the required infrastructure in the United Kingdom and overseas. This would represent a significant and disproportionate cost to the taxpayer.

Amendment 36 seeks to amend the drafting of the integration aspect of the public interest in migrants being able to speak English. It clearly is in the public interest for a migrant seeking to enter or remain in the UK to be able to speak English. Parliament has already approved this for spouses and partners, for example as part of the family Immigration Rules. English language skills play an important part in a person’s successful integration into society and help migrants access employment opportunities and contribute to the wider society. However, although in some cases it may be true that migrants who can speak English are likely to be able to integrate, their ability to integrate does not rest solely on their ability to speak English. None the less, there can be no doubt that the ability to speak English will mean migrants are better able to integrate into British society.I therefore suggest that the intention here is better reflected in the current wording of Clause 14.

Amendment 37 seeks to remove the promotion of integration as a factor in the provision made by Clause 14 as to the public interest in migrants being financially independent in immigration cases which engage Article 8.

Those who choose to establish their family life in the UK by sponsoring a non-EEA national partner and any dependent non-EEA national children to settle here should have the financial means to support themselves and their families for the long term without needing to rely on public funds. This safeguards the United Kingdom’s economic well-being by preventing burdens on the taxpayer. In addition, being financially independent also helps ensure that a migrant is able to integrate and play a full part in our society.

It is important, for example in facilitating community involvement, that migrants should be able to use local shops, local services and public transport in an ordinary, everyday way that is not inhibited by a lack of funds. The same applies to adult education resources, such as English language classes, for which a fee may be charged. This is consistent with available evidence on effective integration, which shows that the level of migrant household income is an important factor.

The OECD report, Settling In: OECD Indicators of Immigrant Integration 2012 has shown a clear connection between effective integration and the level of migrant household income. The report states that household income and wealth have been shown to be important for a broad range of socioeconomic outcomes, in areas as diverse as health, education and civic participation. The report also found that having insufficient income may hamper migrants’ ability to function as autonomous citizens, which may have consequences for social cohesion. The report underlines the importance of migrants having access to sufficient funds to enable them to participate in the life of their local community. Despite declaring that I support the promulgation of the Welsh and Gaelic languages, I think it would be inappropriate in this context, and in the light of these points I hope that the noble and learned Lord will agree to withdraw his amendment.

Photo of Lord Mackay of Drumadoon Lord Mackay of Drumadoon Judge

I am grateful to noble Lords who spoke in support of my amendment. I am also very grateful to the noble and learned Lord not only for his very detailed response to my submissions and remarks on the present amendment but for some of his earlier responses, which will be of great interest to a number of people. In these circumstances, I seek leave to withdraw the amendment.

Amendment 34 withdrawn.

Amendments 35 to 37 not moved.

Photo of Lord Skelmersdale Lord Skelmersdale Deputy Chairman of Committees, Deputy Speaker (Lords)

My Lords, in calling Amendment 38, I must inform the Committee that if it is agreed, I cannot call Amendments 38A to 39A inclusive, by reason of pre-emption.

Amendment 38

Moved by Lord Pannick

38: Clause 14, page 13, leave out lines 5 to 11

Photo of Lord Pannick Lord Pannick Crossbench

My Lords, Amendments 38, 41, 44 and 46 are in my name and that of the noble and learned Lord, Lord Hope of Craighead, who regrets that he is unable to be in his place this evening.

The Minister mentioned some of the history behind Clause 14 in his general comments in response to Amendment 33. This is not a criticism, but he omitted to refer to the fact that this subject has concerned the Home Secretary for some time; at least since her speech in autumn 2011 at the Conservative Party conference, when she referred to a Bolivian man who she alleged had avoided deportation because of his relationship with his cat. The Home Secretary returned to the subject in February 2012 in an article she wrote for the Mail on Sunday under the provocative headline, “It’s MY job to deport foreigners who commit serious crime —and I’ll fight any judge who stands in the way”.

The contents of this article were as combative as the headline. According to the Home Secretary, some judges did not understand Article 8 of the European convention on the right to private life, in particular in relation to deportation. They were ignoring the Immigration Rules and subverting our democracy. This is not ancient history because at the Second Reading of this Bill in the other place on 22 October 2013, the Home Secretary stated that these remained the concerns which formed the basis for Clause 14 of the Bill. She complained that,

“some judges have still chosen to ignore the will of Parliament and go on putting the law on the side of foreign criminals instead of the public.—[ Official Report , Commons, 22/10/14; col. 162.]

The first problem I have with Clause 14, and which motivated these amendments, is whether there really is a mischief that needs to be addressed. Can the Minister tell the Committee who are these rogue judges and how often tribunals and courts have, in the view of the Government, misapplied Article 8? Can he say how many cases that troubled the Home Secretary she brought to the Court of Appeal, and with what result? I ask these questions because similar ones were put by the noble Lord, Lord Rosser, in winding up for the Opposition in the Second Reading debate in this House on 10 February, at col. 520. They are, I respectfully suggest, important questions for the noble and learned Lord to answer, because a very serious allegation has been made against the judiciary. I do not speak for the judiciary, but I simply cannot understand the factual premise for Clause 14—and nor, if I may say so, can anyone else practising in this field to whom I have spoken.

The Minister said, again in debate on Amendment 33, that the Immigration Rules might be the subject of legal challenge because they are not in primary legislation and therefore that it is desirable to legislate. He also suggested that the noble and learned Lord, Lord Mackay of Drumadoon, by reason of his judicial observations, may be responsible for Clause 14. The history, as I have sought to point out, suggests otherwise, but in any event, as the Minister will know, the matter has now been addressed by the judgment of the Master of the Rolls, Lord Dyson, for the Court of Appeal in the case of MF (Nigeria) v the Secretary of State, decided on 8 October 2013 and reported in 2014 on page 544 of volume 1 of the Weekly Law Reports.

In that judgment the Master of the Rolls, speaking for the Court of Appeal, upheld the validity of the new Immigration Rules. His Lordship decided at paragraphs 42 to 44, accepting the submissions made on behalf of the Home Secretary, that the Immigration Rules are valid. They require tribunals to apply a proportionality test which recognises that something very compelling will be required to outweigh the public interest in the removal of someone liable to deportation. Can the Minister explain to the Committee what it is that the Secretary of State is now objecting to in any of this, and why we need Clause 14 in the light of the Court of Appeal judgment?

I have a second concern about Clause 14 which again informs these amendments. New Section 117B(4) and (5) do not merely set out the Government’s view of what factors should be taken into account in a deportation case, as the noble and learned Lord suggested in his comments on Amendment 33. New Section 117B(4) and (5) tell judges to give “little weight” to,

“(a) a private life, or

(b) a relationship formed with a qualifying partner, that is established by a person when the person is in the United Kingdom unlawfully”, or,

“when the person’s immigration status is precarious”— whatever that means, because the term is not defined and will give lawyers many hours of gainful employment. The objection to new Section 117B(4) and (5) is that they will tell the judiciary how much weight to give to relevant factors. The problem with this, as the noble and learned Lord will understand, is that how much weight should be given to such factors will inevitably depend upon the facts of a particular case.

The Joint Committee on Human Rights said in its eighth report of this Session at, paragraph 60, that it was “uneasy” about this provision. The Joint Committee described it as,

“a significant legislative trespass into the judicial function”, which appears to be “unprecedented”. I would have no difficulty with Parliament identifying public interest considerations for the courts and tribunals to take into account. No one could object to that. Parliament can perfectly properly specify factors such as those listed in new Section 117B(4) and (5), although of course judges already take them into account. The objection is that the proposed new section purports to tell judges what weight to give those factors in particular cases. That is a matter for the judge or the tribunal in the circumstances of the individual case.

I would also welcome information from the Minister on how new Section 117B(4) and (5) are to be applied in the event that the tribunal thinks that Article 8 and the proportionality test require that such factors be given more than a “little weight”. The Immigration Rules expressly state that decision-makers must act in accordance with the Human Rights Act 1998. The Court of Appeal judgment in MF (Nigeria) records that the Home Secretary accepted that the Immigration Rules were not intended to suggest the contrary. The noble Lord, Lord Taylor of Holbeach, who I am pleased to see in his place, has made a statement under Section 19 of the Human Rights Act on the front page of the printed version of the Bill that its provisions are compatible with convention rights. Can I therefore ask the noble and learned Lord to confirm that if in a particular case a judge or tribunal concludes that

Article 8 requires more than little weight to be given to such factors, nothing in Clause 14 will require the judge or tribunal to decide to the contrary?

I should finally mention new Section 117C which purports to set out the criteria to be applied in deportation cases where the individual has been sentenced to a period of imprisonment. Again, I am concerned that these criteria are far too prescriptive and will reduce proper judicial discretion. For example, new Section 117C(4)(b) requires an applicant to show that he or she,

“is socially and culturally integrated in the United Kingdom”.

Can the Minister assist the Committee on what this concept means? Does the Muslim man living in Birmingham whose social and cultural life is in the Muslim community, and does the Jewish woman living in Hendon in the Jewish community, satisfy this criterion? Are they socially and culturally integrated in the United Kingdom? I am very troubled by Clause 14 for all these reasons, and I beg to move.

Photo of Baroness Lister of Burtersett Baroness Lister of Burtersett Labour 7:00, 5 March 2014

My Lords, I will speak to Amendments 38A, 38B and 39A. The noble Lord, Lord Pannick, has made a very powerful case against Clause 14, in which he referred to the report of the Joint Committee on Human Rights, particularly our concerns about the “little weight” point.

The Joint Committee acknowledged that Clause 14,

“could be considered to be Parliament's fulfilment of the important obligation imposed on it by the principle of subsidiarity, to take primary responsibility for the protection of Convention rights in national law by providing a detailed legal framework to give effect to them”.

But, as the noble Lord, Lord Pannick, said, we expressed our unease about the “little weight” provision, which we considered to be,

“a significant, and possibly unprecedented, trespass by the legislature into the judicial function”.

Our concerns remain despite the Government’s response to our report, which did not,

“specifically address our concern about these particular provisions going too far by seeking to prescribe the weight to be given to certain considerations, but merely repeats the Government’s general justification”— this seems to be a pattern: the point is made and the Government justify it with exactly the same point without any real engagement with the arguments that are being made—

“for the provisions in clause 14 of the Bill: that it is ‘right and helpful that Parliament should set out what the public interest requires in the clear and practical terms reflected in clause 14, which reflect the case-law’”.

I think that the noble Lord, Lord Pannick, has fairly well demolished that argument.

The report continues:

“We remain concerned by these provisions in the Bill, which do not seek to guide the courts about the public interest considerations to be taken into account in deciding whether an interference with private or family life is justified, but rather seek to influence the amount of weight given to the right itself in particular types of case”.

The amendments to which I am speaking would give effect to the Joint Committee’s original recommendation that,

“the Bill be amended in a way which retains this as a relevant consideration to be weighed in the balance, but does not seek to prescribe the weight to be given to the right in that balancing exercise”.

Photo of Lord Judd Lord Judd Labour

My Lords, I am very grateful to the noble Lord, Lord Pannick, for introducing this amendment. He has raised a crucial matter. I have no legal qualifications whatever but as a citizen I care about the operation of the law. It is one thing for legislation to stipulate what issues should be taken into account, but to start saying how much weight a judge should give to particular considerations seems a dangerous precedent. Where is this going to stop? One of the things that is crucial to our understanding of justice and the operation of the law in this country is the independence and objectivity of the judge within the law.

This matters as a principle for all citizens in Britain because this move, if implemented, is a precedent, but it also matters very much in terms of community relations. How are we going to build positive relationships with our ethnic minorities if they feel that the Government are issuing such instructions to judges on how they must behave? The good will of ethnic-minority communities depends on their being able to depend on the law and the principles of the law as we like to claim they traditionally operate in this country.

I will not repeat all the anxieties that I have expressed at other points in consideration of the Bill, but all I can say is that we live in very dangerous times. I worry about the alienation of young people when they begin to say, “Look what is happening in reality”. This plays into the hands of sinister elements and I really think that this revision is an unfortunate and dangerous precedent. The whole House should be grateful to the noble Lord, Lord Pannick, for having alerted us, in his usual expert and convincing way, to the need to oppose Clause 14.

Photo of Lord Brown of Eaton-under-Heywood Lord Brown of Eaton-under-Heywood Chair, Sub-Committee on Lords' Conduct, Chair, Sub-Committee on Lords' Conduct 7:15, 5 March 2014

My Lords, I have the misfortune to oppose these amendments and to take a different view, therefore, from that already indicated by earlier speakers. I welcome the general thrust of Clause 14.

It is hardly surprising that the Government are intent on clarifying as plainly as possible in primary legislation their policy with regard to Article 8 and the interests that Article 8 furthers. Initially they sought to do this by way of changes to the Immigration Rules back in June 2012 but the courts then said, correctly, in the judgment of the Upper Tribunal in a case called Izuazu:

“Only the Parliamentary process for primary legislation permits a clause by clause discussion of the measures, with opportunity for amendments and revision”.

A little later the judgment quoted from a recognised work on constitutional and administrative law, as follows:

“An Act of Parliament has legal force which the courts are not willing to ascribe to other instruments which for one reason or another fall short of that pre-eminent status”.

It is not that the rules are vulnerable to legal challenge. As the noble Lord, Lord Pannick, rightly said, in a recent case the Master of the Rolls made it plain that the rules, for what they are worth, are perfectly lawful. But it is in these circumstances that the Government—to my mind, unsurprisingly—have chosen to translate their policy into primary legislation. Indeed, the Minister made this plain in his response to an earlier group of amendments.

In the past, courts have rather too often tended to thwart the attempts of the Government to control immigration and deport foreign criminals on the basis on Article 8 interests. On occasion, they have carried the reach of this article beyond even the lengths to which the Strasbourg court itself has gone, and that court is no mean exponent of the art of dynamic and creative interpretation of the convention. Indeed, I said as much in a dissenting judgment I gave in 2011 in the Supreme Court in a case called Aguilar Quila. In that case, in reliance on Article 8, my colleagues struck down as not proportionate to Article 8 interests an immigration rule designed to combat the evil of forced marriages. I concluded there that:

“Article 8 is a difficult provision which has already led to some highly contentious, not to say debateable, decisions. Upon that I am sure we would all agree. In a sensitive context such as that of forced marriages it would seem to me not merely impermissible but positively unwise for the courts yet again to frustrate government policy except in the clearest of cases”.

I do not say that the deportation even of foreign criminals is as sensitive a matter as preventing forced marriage but, undoubtedly, it is one that gives rise to wide public concern.

I am strongly in favour of the United Kingdom remaining fully committed to the European Convention on Human Rights—and the Human Rights Act, which gives effect to it domestically. However, I can think of nothing more calculated to induce Government to conclude that the nation’s better interests may in fact be served by abandoning our convention commitments that the continual frustration of government policy by an overenthusiastic interpretation and application of the convention, not least Article 8.

The amendments proposed here, particularly those of my noble and learned friend Lord Hope, for whom I have the utmost respect, and my noble friend Lord Pannick, eliminate from the face of the provision the relevance of foreign prospective deportees, and criminals in particular, having been here unlawfully or with only a precarious immigration status when their private lives or relationships were established. The Joint Committee’s recent report very helpfully looked afresh at this provision. Even it did not suggest that these were irrelevant considerations. On the contrary, the particular amendments that the committee proposed at paragraph 111—not, if I may say so, that anybody has yet explicitly adopted them—recognise and acknowledge the relevance of these sorts of consideration. Logically it would follow in the specified circumstances when someone is here unlawfully or under a precarious immigration status that the court would give less weight to whatever private life and relationship interests they have managed to build up. Why therefore not say so? That is precisely what Clause 14 now does. I do not see any distinction—certainly no critical one—between giving interests built up “little weight” and giving them less weight.

Judges will continue to honour their oaths to decide cases independently and objectively. Their entitlement to do so is by no means removed by this clause. In so far as in any particular case the judge considers that absolute Article 8 obligations require that there be no removal of the person concerned, there is nothing in this legislation to drive a contrary decision. Judges can give effect—indeed are duty bound to do so—to that conclusion as to the requirements of Article 8. However, Government are entitled—it is what they are doing here in primary legislation as plainly as may be—to set out what their policy is and what they regard as the critical considerations in play in these cases. In short, I see much to be said in favour of this clause and nothing substantial to be said against it.

A final word just on children: clearly the best interests of all children, not just qualifying children, remain a primary consideration in all cases. Qualifying children are a particular concept introduced in respect of the removal of foreign criminals. Surely it is not difficult to see why their situation is singled out for particular special treatment. I am agnostic and neutral on whether that consideration should be spelt out not only under Section 55 of the 2009 Act giving effect to the interests of all children or under our international convention obligations but also in this particular provision. It may not be thought necessary but if it is, so be it. However, I support the clause as a whole.

Photo of Baroness Smith of Basildon Baroness Smith of Basildon Opposition Deputy Chief Whip (Lords), Shadow Spokesperson (Home Affairs)

My Lords, as a non-lawyer, I always take some comfort when the lawyers disagree on an issue. I have already stated our position on Article 8. We consider it right for Parliament to set out how the qualified rights of Article 8—the right to private and family life—should be balanced. However, as I think I indicated previously, we share those concerns that some decisions have been taken where we would ask whether the qualifications to Article 8 had also been appropriately considered when assessing the right to private and family life. I would disagree with the noble Lord, Lord Pannick, on that point.

However, I share his anxieties about some of the rhetoric around this debate. I recall the Home Secretary telling the Conservative Party conference that one individual had had his leave to remain granted on the basis of his private life and his family relationship with his cat. That proved to be absolute nonsense and unfair. There is a duty on all of us when discussing this issue to be measured and fair and to ensure that our facts are correct on all occasions.

I would like to probe a couple of areas with the noble and learned Lord. This may be the first debate on this where equal numbers of lawyers and non-lawyers have taken part. The noble Lord, Lord Pannick, and my noble friend Lady Lister made points about the language of the clause. The Government raised the issue of the interpretation of the legislation. However, I do not know whether any other legislation uses the term or gives advice that “little weight” should be given. If there are problems about “little weight” in terms of definition, will there be any clarification from the Government around interpretation for those taking these decisions? We are introducing a concept that could create the same problems around interpretation. It is appropriate that Parliament should state for the benefit of judges how we expect the interpretation to take place if the language is not familiar to them. That appears to be a problem in such cases at present.

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Lords Spokesperson (Attorney General's Office), The Advocate-General for Scotland, Deputy Leader of the House of Lords, Lords Spokesperson (Scotland Office), Liberal Democrat Leader in the House of Lords 7:30, 5 March 2014

My Lords, I thank the noble Lord, Lord Pannick, for moving the amendment, which has given us an opportunity to air a number of important points, and I thank all noble Lords who took part in the debate. I do not intend to repeat what I said in my introductory remarks when we discussed the first group of amendments to Clause 14. However, in responding to noble Lords, I may have to repeat one or two of the points that I made.

I emphasise a point made by the noble and learned Lord, Lord Brown of Eaton-under-Heywood. We have sought to put this into statute. The Government have come to Parliament to get Parliament to indicate clearly in primary legislation what it considers to be the matters in the public interest, given that Article 8 is not an absolute right under the European Convention of Human Rights but, rather, a qualified one. It is part of our debates that we should not only respond to invitations from the judiciary, but debate what that public interest should be. That is indeed what we are doing in debating these matters.

I turn first to Amendments 38, 38A, 38B, 39 and 39A. The noble Lord, Lord Pannick, the noble and learned Lord, Lord Hope of Craighead, and the noble Lord, Lord Hylton, propose to remove the provision in Clause 14 that “little weight” in terms of the public interest should be given to family life with a partner, or to private life, which was formed when the person was in the UK unlawfully or to private life formed with precarious immigration status. The amendment of the noble Baroness, Lady Lister of Burtersett, would remove the statement of weight attached to the public interest in circumstances where private or family life was established with unlawful status, or private life was established with precarious status. The noble Lord, Lord Pannick, and the noble Baroness, Lady Smith, raised the issue of the wording of “little weight” and asked where that came from. The Human Rights Act requires courts to take into account Strasbourg judgments, but the requirement is not to follow them. However, the clause indicates that, in relation to precarious immigration status, we expect the court to follow the Strasbourg case law.

I digress for a moment, because the noble Lord, Lord Pannick, also said that precarious immigration status was not defined. As I understand it, Strasbourg case law makes it clear that it covers those temporarily in the country. It is a term that has to be interpreted by the courts, but that is the case whether or not the provision is in the Bill, as it is the correct legal test in determining what weight to give to Article 8 rights. “Precarious” is difficult to define in a Bill, as there are many different types of immigration status. If one takes the case, for example, of Rodrigues da Silva and Hoogkamer v the Netherlands, the European Court of Human Rights found:

“Another important consideration will also be whether family life was created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the host State would from the outset be precarious. The Court has previously held that where this is the case it is likely only to be in the most exceptional circumstances that the removal of the non-national family member will constitute a violation of Article 8”.

It was to capture that jurisprudence of the European Court of Human Rights, which the Government believe is a proper determination of such a situation, that that has been carried through into the provision in the Bill: that the courts, in taking into account Strasbourg judgments, would give little weight in those circumstances.

The clause reflects that those who enter the UK for a temporary purpose, such as work or study, can have no automatic expectation of being allowed to settle here. Any private life that they develop must be seen in the context of the expectation of their returning to their country of origin. Those who form private or family life while in the UK unlawfully can have even less expectation of being allowed to stay here.

It is important that the immigration system rewards those who obey the rules and provides a clear disincentive to those who do not. These provisions make clear what we believe to be the public interest in that respect. As I said, they reflect the case law of the European Court of Human Rights in Strasbourg, which has consistently placed little weight on private or family life formed during a time when a person’s immigration status is precarious.

More generally, the Strasbourg court has made clear that the European Convention on Human Rights does not guarantee families a right to reside in a particular country and has consistently recognised that the Executive enjoy a significant margin of appreciation in determining how most appropriately to control immigration. Clause 14 is framed within the margin of appreciation afforded to states in this respect.

It is right that Parliament should make clear its view that little weight in terms of the public interest should be given to family life with a partner, or to private life which was formed when the person was in the UK unlawfully or to private life formed with precarious immigration status. We do not believe that that encroaches on the proper judicial function. It will remain a matter for the court to decide whether the weight to be accorded to the public interest as set out by Parliament in Clause 14 outweighs the individual’s right to respect for private and family life, and therefore whether the decision is proportionate in Article 8 terms.

The noble Lord, Lord Pannick, referred to the fact that my noble friend Lord Taylor of Holbeach had signed the Section 19A certificate in regard to the European Convention on Human Rights and asked whether we believe that it is consistent with it. The answer is: yes, we do believe that it is consistent. I understand that that was not challenged by the Joint Committee on Human Rights. I acknowledge that certain important points were raised, but I do not understand the Joint Committee on Human Rights to have challenged that.

In Amendments 41 and 44, the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Hope of Craighead, propose to remove most of the provisions setting out specific public interest statements to which the courts would be required to have regard when assessing an Article 8 appeal against deportation from a foreign criminal. The public interest statements in question set out when, in the case of a foreign criminal sentenced to less than four years’ imprisonment, the public interest will be outweighed by an individual’s private life in the UK, or by their family life with a qualifying child, or by their family life with a qualifying partner. The public interest statements also reflect a higher threshold for those sentenced to imprisonment of four years or more, which we believe reflects the very strong public interest in deportation, given the seriousness of these types of crimes. Only where there are very compelling circumstances will the public interest be outweighed by Article 8 rights in such a case.

The effect of Amendments 41 and 44 would be to leave just two statements of what is in the public interest when assessing whether it is proportionate to deport a foreign criminal: first, that the deportation of foreign criminals is in the public interest; and secondly, that the more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal. Much of the detail in the clause appears in the Immigration Rules, which Parliament considered in 2012. The two statements that would be left if Amendments 41 and 44 found favour with the Committee would not alone achieve the overall aim of Clause 14, which is to ensure that Parliament’s view of the weight to be attached to the public interest in deportation is taken properly into account by the courts when considering cases engaging Article 8, thereby achieving greater fairness and consistency in appeal outcomes.

Of course, as was acknowledged by the noble and learned Lord, Lord Brown, every appeal must be assessed on its individual facts and, where there is a right of appeal, the courts must ultimately decide what is proportionate in Article 8 terms. Clause 14 does not seek to change that proper judicial function; rather, the amendments would remove much of the framework which Clause 14 provides for weighing the public interest in the deportation of foreign criminals as part of that proportionality assessment.

We believe that the benefits of a framework set out by Parliament in primary legislation are clear. It is right that Parliament’s view of the public interest should be given proper weight in immigration and deportation decisions engaging Article 8. Such a framework will also bring greater efficiency, consistency, fairness and transparency of decision-making.

Parliament has not previously provided a full and clear statement in legislation on where the public interest lies in considering family and private life claims. As I said before, the 2007 Act requires the Secretary of State to make a deportation order against a foreign criminal sentenced to at least 12 months’ imprisonment, unless one of the several specified exceptions applies, including where deportation would breach the criminal’s human rights. Although an indication of the public interest, it is a limited view, and does not assist the courts in determining how to balance an individual’s right to family and private life against that public interest.

Inevitably, therefore, the courts have had to reach their own view on public policy imperatives. In other words, it has been left to the court in an individual case to determine how best to balance relevant factors, based on the decision-maker’s individual perception of public policy considerations. I am sure we all agree that it is right and proper for the Government to make decisions about public policy, subject to the views of Parliament, and ensure that the public interest is given proper weight.

The statements of public interest contained in Clause 14 reflect the basis of the new Immigration Rules which was approved in October 2013 by the Court of Appeal in MF (Nigeria), as the noble Lord, Lord Pannick, said. The court found that the new deportation rules provide a “complete code” for dealing with Article 8 claims and that where specific family and private life exceptions to deportation were not met,

“it is necessary to consider whether there are circumstances which are sufficiently compelling … to outweigh the public interest in deportation”.

The noble Lord asked why we were doing this, given the decision of the Court of Appeal in MF (Nigeria). Looking at the chronology, I suspect we would find that the Bill was introduced into the other place almost within days of that decision being handed down. I can assure the noble Lord that legislation is not produced within days and is some time in the gestation. We thought it important, given that the Upper Tribunal has said in the case of Izuazu—I am sure that the noble and learned Lord, Lord Brown, would pronounce that name better—that:

“Whilst it is open to Parliament to change the law by primary legislation unless and until it does so these”, previous,

“decisions are binding on the Upper Tribunal and will be followed by it”.

By putting statements into primary legislation, Parliament will have made clear its view on where the public interest lies and we expect the courts to have proper regard to that.

I also make the point in passing that the inner house of the Court of Session is on an appellate par with the Court of Appeal and that, as I cited earlier, the noble and learned Lord, Lord Mackay of Drumadoon, observed on the case that I referred to that these rules did not have the force of statute. It is important to observe that in that case, the inner house’s extra division actually upheld the position of the Secretary of State for the Home Department, so it is not as if we were crying foul or anything like that. It is also the case that MF (Nigeria) concerns deportation cases whereas Clause 14 concerns public interest considerations more generally. It will also enable the court to consider the public interest in family cases and private life cases that do not necessarily involve foreign criminals.

Unlike the Immigration Rules, Clause 14 does not contain requirements to be met but factors to be considered, in the form of public interest statements, to which the courts will be required to have regard. This recognises that there must continue to be an assessment of the individual facts of each case and that the decision on proportionality under Article 8 continues to lie, ultimately, with the court. The statements, however, ensure that Parliament has decided what the public interest requires and not the courts. In formulating the public interest statement that a foreign criminal sentenced to a period of imprisonment of at least four years must be deported unless there are very compelling circumstances, the Government took account of Parliament’s approach in approving the Legal Aid, Sentencing and Punishment of Offenders Act 2012. This Act amended the Rehabilitation of Offenders

Act 1974 to reflect that a sentence of imprisonment for a term exceeding four years will never be rehabilitated or “spent”.

Parliament therefore appears, in recent legislation, to have endorsed the position that a term exceeding four years’ imprisonment represents a very serious level of offending indeed. The Government consider that a custodial sentence of at least four years is one which means that it will almost always be proportionate to outweigh any family or private life considerations and, as such, would require compelling circumstances to lead to an outcome other than deportation. This is the approach we adopted for deportation cases in the new Immigration Rules, using the term “exceptional circumstances”. We are trying to bring greater clarity to decision-making, not return to the difficulty which the courts have already experienced in assessing complicated individual circumstances against case law in the absence of a clear statement from Parliament of what the public interest requires. To remove the exceptions to deportation from Clause 14, as proposed, would be to remove Parliament’s clear statement of its view of the weight that should be attached to the public interest in deportation, thereby undermining the purpose of that provision.

Finally, I turn to Amendment 46, tabled by the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Hope, which is contingent on Amendments 41 and 44. This would delete the provision explaining how to interpret references to a person who has been sentenced to a period of imprisonment of a certain length of time. As the House will appreciate, a definition of “a period of imprisonment” is required to ensure that there is no confusion in the application of Clause 14. Section 38 of the UK Borders Act 2007 sets out what constitutes,

“a period of imprisonment of at least 12 months”, for the purposes of that Act. The interpretation for Clause 14 has been drawn from that and is necessary for the avoidance of doubt and to ensure consistency, both across primary legislation and in the application of the new provisions. In the light of these explanations I encourage the noble Lord, Lord Pannick, to withdraw his amendment.

Photo of Lord Pannick Lord Pannick Crossbench 7:45, 5 March 2014

I am very grateful to the Minister and indeed to all noble Lords who have spoken on this important topic. The noble and learned Lord the Minister, the noble and learned Lord, Lord Brown of Eaton-under-Heywood, and the noble Baroness, Lady Smith of Basildon, all emphasised that it must be for government to ask Parliament to set out in legislation the policy on what factors should be taken into account, or may be taken into account, in the public interest in deportation cases. I have no quarrel with that but that is not the concern. What is objectionable in my view about Clause 14 is that legislation will tell the judges what weight to give to relevant factors in deciding a case which depends, inevitably, upon the particular circumstances of that case. That is a matter not for Ministers or for Parliament. It is a matter for the judge, looking at all the circumstances of the case and taking into account the factors which have been identified by Parliament as relevant.

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Lords Spokesperson (Attorney General's Office), The Advocate-General for Scotland, Deputy Leader of the House of Lords, Lords Spokesperson (Scotland Office), Liberal Democrat Leader in the House of Lords

I sought to try to explain that that expression of little weight was really a way of putting into statutory form what we believe is in fact the practice of courts in the cases which are here. I think it was in the case against the Netherlands; I do not know the first name involved but the other was Hoogkamer. I am sorry not to get that right. We were seeking to say that we endorse what the position of the European Court of Human Rights has been on that. Whereas under the Human Rights Act the court is asked to consider and have regard to the Strasbourg jurisprudence, what we are seeking in this is to say that we agree that the court should follow the Strasbourg jurisprudence. This has not suddenly been conjured up; it is based on what we believe the courts would do.

Photo of Lord Pannick Lord Pannick Crossbench

I am grateful to the noble and learned Lord. The difficulty with that is that the Strasbourg jurisprudence recognises that although of course little weight should be given to these factors in many cases, there will be other cases where considerable weight should be given to these factors in the individual circumstances. They may be unusual or rare cases but the Strasbourg court is not saying that it is a rule that in every case involving family or private life, little weight shall be given to these factors. The difficulty about Clause 14 is that it purports to suggest that little weight must always be given to these factors, whatever the circumstances of the case. It does not say “other than in exceptional circumstances” or “normally”; it says that little weight shall be given to these factors. If the Minister wishes to come back on Report with an amendment that recognises a degree of judicial discretion, I shall be delighted to welcome it but that is what Clause 14 says at the moment.

The difficulty that the Minister faces is that he must recognise that there will inevitably be cases where a tribunal or a court, looking up at the facts of the case, decides that greater weight should be given to these factors. If I understood him correctly, the Minister accepted that if the court or tribunal decides in applying Article 8 that more than little weight is required to be given to these factors, then Article 8 must prevail. So Clause 14 is simply illogical and self-contradictory. It does not even achieve what the Minister says it is designed to achieve.

In introducing this group of amendments, I said that the Joint Committee on Human Rights had been unable to identify any precedent for legislation telling the courts what weight to give to relevant factors. I do not think that the Minister or indeed the noble and learned, Lord Brown of Eaton-under-Heywood, with their combined expertise and experience, have pointed to any precedent upon which Clause 14 should be based. I think that this is a constitutional novelty, and we will be creating a very unfortunate precedent by telling the courts what weight to give to relevant factors, when that must depend on all the circumstances of the case.

I am sure that we will be returning to this topic on Report. I ask the Minister to reflect on this matter and to see whether it is possible to meet the concern that has been expressed today, without doing any violence to the object of Clause 14, by putting in some wording that recognises in the Bill the retention of judicial discretion in this matter. For the moment, though, I beg leave to withdraw the amendment.

Amendment 38 withdrawn.

Amendments 38A to 46 not moved.

Clause 14 agreed.

Amendment 47

Moved by Baroness Hamwee

47: After Clause 14, insert the following new Clause—

“Assessment of financial circumstances

When the financial circumstances of an applicant who seeks to enter or remain in the United Kingdom are to be considered account shall be taken of—

(a) the national minimum wage,

(b) the benefit to taxpayers and to society of the applicant acting as a carer,

(c) the applicant’s prospects of employment (including likely earnings),

(d) the prospects of employment (including likely earnings) of the spouse or partner of the applicant, and

(e) the interests of any child of the applicant who as a result of the refusal of the application may be separated from a parent.”

Photo of Baroness Hamwee Baroness Hamwee Liberal Democrat

My Lords, Amendment 47 deals with financial circumstances when they fall to be considered in respect of an applicant seeking to enter or remain in the UK. I have quite deliberately framed the amendment as a new clause rather than seeking to amend Clause 14, where I am sure that I would be told that there was a very delicate balance that I should not be disturbing.

The Minister and I have debated before, and I suspect that we will again, the issue of the family migration laws that were introduced in July 2012, under which new financial thresholds are required to be met for an applicant to join a British citizen to whom he or she is married, or is a partner, in this country. The Minister will recall our discussions both about the financial threshold and about the impact on children who, as a result of the rules, find themselves separated from one parent. The impact is on families of British citizens and taxpayers.

I am well aware of the case of MM. I am not sure whether it is still being heard in the Court of Appeal. It started at the beginning of this week and we await the Court of Appeal’s judgment. I am aware that the Home Office has suspended decisions where the issue is a financial one, pending the outcome of the case. However, I could not let the Bill go by without a reference to what, week after week, I see as being very distressing circumstances. I say “week after week” because those who are affected by the rules, and noble Lords will understand this, cast around for those who may be interested and who may be able to take up their case. I am not really in a position to take up cases but I am certainly interested, and I therefore have a steady stream of e-mails and letters telling me of sets of circumstances that I do not think anyone could possibly have envisaged when the rules were brought into effect.

My amendment would seek to ensure that, where financial circumstances were to be considered, account would be taken, first, of the national minimum wage. The financial threshold where there are no children, in the case of the family migration rules, is £18,600, while the national minimum wage, worked for a 40-hour week, is in the order of £13,200. Secondly, account would be taken of,

“the benefit to taxpayers and to society of the applicant acting as a carer”.

I have come across a number of situations where the British citizen is caring for—usually—a child, and if that British citizen could be joined by his or her spouse then caring responsibilities would be shared, which would be to everyone’s benefit in a social, humane sense, but would also be a benefit to the taxpayer because it would lift the burden from them, too. Thirdly, I have referred to,

“the applicant’s prospects of employment (including likely earnings)”, and those of the spouse or partner. I am aware of quite ironic situations where high-earning people have been defeated by these rules, even though they have great prospects not only of earning themselves but of bringing economic goods to the country, because there is no contract in place or history of earnings here to which they can point. I am aware of a number of situations where people have taken the decision to go and live in another country and apply their earning power there. Lastly, and very importantly, I refer to,

“the interests of any child … who as a result of the refusal of the application may be separated from a parent”.

I have already referred today to the impact on children separated from parents, and this is something that concerns me very much.

In the first instance decision, Mr Justice Blake referred essentially to these factors in the concerns that he expressed about the rules that are in place. One of his suggestions was reducing the minimum income requirement of the sponsor alone to £13,500 or thereabouts —very close to the figure that I have referred to.

I could speak on this for a long time, but I am of course aware of the debate that is to come and that noble Lords are gathering for it. I also know that the Minister is not in a position to roll over tonight, given the case that is in train. In all conscience, though, I had to raise this; it expresses my position and keeps the faith. I beg to move.

Photo of Baroness Lister of Burtersett Baroness Lister of Burtersett Labour

My Lords, I support this amendment. I remember that when we debated the original regulations in your Lordships’ House, I said I found it quite distasteful that we were introducing a means test for family life—a means test that, unlike other means tests, excludes the most disadvantaged rather than includes them.

Last summer I chaired a packed meeting for the Divided Families Campaign. We heard some heartbreaking examples of families who had been broken up as a result of these new regulations. Many noble Lords will be aware of the report produced by the All-Party Parliamentary Group on Migration on its inquiry into the new family migration rules. I will not go into any detail now because of the other debate that is about to happen, but there are plenty of examples there of the harmful effects of these regulations.

I cannot help but reflect that yesterday in your Lordships’ House the noble Lord, Lord Freud, created a false divide, suggesting that that side of the House supported marriage while this side could not care less about it. My concern is less about marriage as such; I am concerned about family relationships. It would seem that, when it comes to immigration, some marriages are more important than others and other marriages simply do not count. I am very glad that the noble Baroness, Lady Hamwee, has used this opportunity to remind your Lordships of the heartache that is being caused. Noble Lords may not receive a steady stream—I receive perhaps not quite such a steady stream—but we certainly receive a steady trickle of e-mails and letters about this. It is important that we keep this in the public domain because I do not think we can carry on like this for much longer.

Photo of The Earl of Listowel The Earl of Listowel Crossbench 8:00, 5 March 2014

I shall briefly speak to paragraph (d) of the amendment moved by the noble Baroness, Lady Hamwee, to draw to your Lordships’ attention today’s Financial Times. The headline reads:

“Migrants set up one in seven companies, study reveals”.

The article goes on to state that foreign businesspeople create 14% of UK jobs. I am sure that the Minister and the Government are very aware of the complexities of this issue. I hope it may be helpful to bring forward the information that was published today. Clearly, we do not wish to cut off our nose to spite our faces. If they are likely to contribute to the economy and generate jobs, we probably want to keep them.

Photo of Lord Teverson Lord Teverson Liberal Democrat

My Lords, I welcome this amendment moved by my noble friend Lady Hamwee. I was very pleased to add my name to it. This is an issue on which I am fairly young. I have got into it over the past year through people from North America, who were in my very old European constituency, who, having been married, are unable to come back and live together.

At Second Reading, I mentioned this, and the Minister responded in a letter. He interpreted my speech as being very much in favour of sham marriages and as saying that people had a right to them. That is completely untrue—I welcome every effort by the Government to stop the pernicious incidences of sham marriages—but this is not about that. This is about real marriages and people who are forced to part by the administrative regulations around financial means. This amendment is a sensible and measured way to balance humanity with economy. It perhaps makes choices a little more complex, but it particularly concentrates on the areas of carers, of saving taxpayers’ money, as my noble friend said, and where children are parted from one of their parents.

All sides of this House are in favour of strong family life. I am sure all sides of the House are also in favour of people being able to make an open choice about whom they marry. Those choices are not always sensible, and that is nothing to do with whether they live abroad or are of different nationalities. It is surely a British citizen’s right and expectation to choose freely whom they are able to marry in a real marriage. This is not all the way to that, but it is an excellent compromise towards finding a way forward. I hope the Minister will be able to respond in some sort of positive way at this time.

Photo of Lord Rosser Lord Rosser Shadow Spokesperson (Defence), Shadow Spokesperson (Home Affairs), Shadow Spokesperson (Transport)

Some very interesting points have been made in support of this amendment. We await with interest the Government’s response; namely, whether they think the issues mentioned in this amendment should be taken into account and, if not, why they are saying that they should not be or, alternatively, whether they will say that there is no need for this amendment because they would expect these matters to be taken into account anyway. We await with interest to hear the Government’s stance.

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Lords Spokesperson (Attorney General's Office), The Advocate-General for Scotland, Deputy Leader of the House of Lords, Lords Spokesperson (Scotland Office), Liberal Democrat Leader in the House of Lords

My Lords, I appreciate the concerns raised by my noble friends Lady Hamwee and Lord Teverson in bringing forward this amendment about the impact of the new family Immigration Rules and, in particular, about the impact of the minimum income threshold for sponsoring a non-EEA national partner and dependent children which was established by those rules. My noble friend Lady Hamwee indicated that we had discussed these matters, and I recognise that she chaired the All-Party Parliamentary Group on Migration’s inquiry into the issue, which was referred to by the noble Baroness, Lady Lister, and which reported in June last year.

I acknowledge the point made by the noble Earl, Lord Listowel. Of course we very much welcome those who have settled here and shown great enterprise. That applies to a considerable number of people. Their contribution is very welcome and not only enriches the community financially but enriches the diversity of different cultures and backgrounds in the community.

The new family rules implemented on 9 July 2012 seek to prevent burdens on the taxpayer and promote integration, in particular by introducing a minimum income threshold of £18,600 a year to be met by those wishing to sponsor a partner to settle in the United Kingdom, with higher amounts for sponsoring dependent children.

The level of the income threshold was set in the light of expert advice from the independent Migration Advisory Committee. The levels of income required are those at which a couple, once settled in the UK and taking into account any children, generally cannot access income-related benefits. The policy is also intended to ensure that family migrants are well enough supported to promote their integration into British society. The Government consider this to be a fair and appropriate basis for family migration that is right for migrants, local communities and our country as a whole.

A couple with an income equivalent to the national minimum wage can still access income-related benefits and tax credits. An income threshold set at that level would not be sufficient to prevent burdens on the taxpayer arising once the migrant partner had settled and could access welfare benefits. It would also not provide an adequate basis for supporting the integration of the migrant partner into British society.

Adjusting the income threshold to take account of a sponsor’s consumption of public services and the contribution they make to reducing pressure on those services, including by acting as a carer, would require a complex calculation and numerous assumptions. Such an approach would be more appropriate with an income threshold benchmarked to a sponsor’s net fiscal contribution which, based on the Migration Advisory

Committee’s report, would be £25,700. This is based on mean household income and represents, in broad terms, the point at which a sponsor becomes a net fiscal contributor: someone who is paying into the public finances more than they are taking out.

We have built significant flexibility into the operation of the income threshold, allowing for different employment and non-employment income sources to be used, as well as significant cash savings. In recognition of their reduced earning capacity, an applicant whose sponsor has caring responsibilities and is in receipt of carer’s allowance is exempt from the income threshold. So, too, is an applicant whose sponsor is in receipt of a specified disability-related benefit. Instead, these applicants have to meet the previous requirement for adequate maintenance.

Employment overseas is no guarantee of finding work in the UK, and the previous and prospective earnings of the migrant partner are not taken into account in determining whether the threshold is met. If the migrant partner has a job offer in the UK which meets our labour market requirements for skilled workers, they can apply under tier 2 of the points-based system. The rules allow a British sponsor who has been working overseas and is returning to the UK with the applicant to work here to count their overseas earnings and a firm job offer in the UK. This means they can sponsor their family to come to the UK without being separated from them while they take up employment here. We also allow a migrant who is already in the UK and working here legally to count their earnings towards meeting the income threshold.

The minimum income threshold of £18,600 applies to those seeking to sponsor the settlement of a non-EEA national partner. It does not apply to those seeking to settle in the UK as the parent of a British citizen child or a child settled in the UK or as an adult dependent relative. Instead, these family members must show that they can meet the adequate maintenance requirement.

This amendment would apply to all applicants for leave to enter or remain, thereby imposing a stricter financial requirement than at present on other family members applying to settle in the UK. The amendment would undermine the maintenance requirements under the points-based system for students and skilled workers who are required to meet rules on maintenance that are relevant to their route. The amendment would also be contrary to the Clause 14 provision that it is in the public interest, and in particular in the interests of the UK’s economic well-being, that persons who seek to enter or remain in the UK are financially independent.

I know that my noble friend said that she did not expect any change tonight, given that there are certain legal cases; certainly, when I discussed this yesterday, the case was still in the Court of Appeal. I recognise what she says, but I hope that she realises that the effect of her amendment could, in some cases, disadvantage some people; there are particular provisions on carers to which I have referred. I hope that, in these circumstances, my noble friend will agree to withdraw her amendment.

Photo of Baroness Hamwee Baroness Hamwee Liberal Democrat

My Lords, about 20 minutes ago, as I reread my amendment just before we started the debate, I recognised the technical flaw in my drafting. I am sure that my noble and learned friend does not really hold that against me too much.

It would be inappropriate for me to take the Committee’s time to deal with everything that was said; there is much more that I could add. I will simply make a couple of points. On the specified disability allowance, it seems from the experience of somebody who has been in touch with me very recently that this is not quite what it seems on the face of it, because she is having great trouble. If the wife of a gentleman caring for an autistic daughter who is inevitably a burden on the state—I hate putting it that way—could come and join him, there would be much less of a burden on the state. To pick up the point of the noble Earl, it means that if there has to be a firm job offer, we are not welcoming in those with the entrepreneurial spirit that we say we wish to welcome.

I will not tax noble Lords’ patience further, because I want to retain some credit in order to be able to bring this back at a later stage—not necessarily in this Bill, but certainly in the future. I beg leave to withdraw the amendment.

Amendment 47 withdrawn.

House resumed.