Immigration Bill — Report (1st Day) (Continued)

Part of the debate – in the House of Lords at 9:00 pm on 1st April 2014.

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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 9:00 pm, 1st April 2014

My Lords, first, I thank not only the noble Earl, Lord Sandwich, but others who have spoken to amendments in this group, because it is of considerable importance that in dealing with these important immigration matters, the interests of children are kept very much in our minds and that we give proper consideration to them.

The noble Earl, Lord Sandwich, raised a point about the withdrawal of assisted voluntary return for immigration detainees. In the short time since he spoke, the information I have received is that the Government prefer illegal migrants to depart voluntarily and go to considerable effort to help them to do so. Those who refuse to go voluntarily may well have to be detained and have removal enforced. Until 31 March, detainees could apply for an assisted voluntary return package. However, the evidence was that that increased delays and costs. I do not think that anyone believes that it is in anyone’s interest to have a drawn out removal process. I confirm that there remains the opportunity to depart voluntarily with assistance, but those who do not co-operate will not fall within that and will be removed. I appreciate that that is perhaps a sketchy answer, but I think that the best thing is to give further chapter and verse by writing to the noble Earl to explain in more detail precisely what are the policy considerations that have led to that provision.

The amendments raise important issues about the best interests of children and the proportionality of decisions under the qualified right to respect for private and family life under Article 8 of the European Convention on Human Rights. I turn first to the amendment in the name of the noble Earl, Lord Sandwich. It is right that the best interests of the child in the United Kingdom should be a primary consideration in the certification process. The noble Earl, Lord Listowel, asked me to confirm that. There will no doubt be cases in which deportation appeals are not certified because of the risk that serious irreversible harm may be caused to a child, but the amendment would make the best interests of the child a trump card over any other consideration, including the strong public interest in seeing foreign criminals deported quickly. Under the amendment, a foreign criminal or deportee would be able to use a child who may have been in the UK for a matter of only days or weeks—there is no definition of a qualifying child—to avoid certification of their appeal and an early departure from the United Kingdom.

The noble Earl asked about parents who will be deported before appeal. The test will be whether serious irreversible harm is likely to result from a temporary separation, pending an appeal on the particular facts of the case. The best interests of children in the United Kingdom will, as I said, be a primary consideration. The courts have reflected that in many cases. It is a primary consideration—not the overriding, trump-all-else consideration, but a primary consideration which they are obliged to take into account. That will be taken into account in the decision whether to certify as well as in making the original decision.

The other effect of the noble Earl’s amendment would be to rely on the presence of the child, even if the parent—the person subject to deportation—did not care for the child or had no relationship with the child. We do not think that that can be right. The certification 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 power is tightly defined to ensure that only those who have caused or are trying to cause us harm are deported from the country quickly. Its operation should not be impaired by the impact of the amendment.

I turn to Amendments 16 and 18, spoken to by the noble Lord, Lord Watson of Invergowrie. I readily understand the concerns that he raised about the best interests of children affected by immigration decisions. Amendment 16, to which the noble and learned Lord, Lord Hope of Craighead, also referred, would insert the words:

“The promotion of the best interests of children”,

as a public interest consideration applicable in all cases. I appreciate what lies behind the amendment and welcome the opportunity to reconfirm to the House how the best interests of children are and will remain a primary consideration in all cases concerning the ECHR Article 8 right to respect for private and family life. I believe that the Bill is consistent with our obligations towards children under the United Nations Convention on the Rights of the Child and Section 55 of the Borders, Citizenship and Immigration Act 2009, 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 a child in the UK as a primary consideration in considering proportionality under Article 8. This 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 18 is compatible with these obligations and has been designed to take proper account of children’s best interests. It does not require the statement added by Amendment 16, which would also expand the extent of the consideration required by Section 55 to include children outside the United Kingdom.

Amendment 20 would replace “unduly harsh” with “disproportionate” when considering the effect on a qualifying partner or child of the deportation of a foreign criminal who has not been sentenced to imprisonment for four years or more. However, this would not reflect sufficiently clearly the weight that we believe should be attached to the public interest in the deportation of such a foreign criminal. It would not achieve the aim of enabling Parliament to set out clearly how the Secretary of State and the courts should approach the proportionality test in a way that properly takes account of the public interest. A higher test for cases involving foreign criminals reflects the greater public interest in their deportation. This distinction was accepted by the noble and learned Baroness, Lady Hale, who is now the Deputy President of the Supreme Court, in ZH (Tanzania).

Perhaps I might reflect on a point raised by the noble and learned Lord, Lord Hope of Craighead. When I spoke to amendments in Committee, I gave some indication of where the Government were coming from with regard to this clause and its relationship to Article 8. Obviously, Article 8 of the European Convention on Human Rights provides for the right to respect for private and family life but, as has been recognised on a number of occasions, that is a qualified right. The individual’s right under Article 8(1) can be outweighed by measures necessary and proportionate for 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 it is the responsibility of government to determine, subject of course to the views of Parliament.

Clause 18 will make it 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. We believe that 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.

The direct response is that it is our view that the court must have regard to the public interest factors in Clause 18. I will not elaborate on what I said in

Committee but there was a decision of the Upper Tribunal that the Immigration Rules, which were considered by both Houses of Parliament, did not carry the same force or authority as words in statute. That is what we seek to do with this clause: to put it in statute.

The noble Lord, Lord Watson, asked whether “unduly harsh” was the wrong test. I think he made some reference to the internal relocation test in asylum cases but that is not the source of this test. Rather, it comes from a Supreme Court extradition case on Article 8, which encompassed the consideration of all relevant factors, including the best interests of the child. I understand that that case was HH v Deputy Prosecutor of the Italian Republic, Genoa.

The noble Lord, Lord Watson, also asked why the test is “unduly harsh” in criminal cases rather than “reasonable to expect”. As I have indicated, by using the phrase “unduly harsh” Parliament is setting out that where the courts are considering Article 8 applications, it is providing a clear statement of the weight to be accorded to the public interest in deportation in such criminal cases. The “unduly harsh” test, as opposed to the “reasonable to expect” test in other cases involving a British child or seven-year-old child resident in the UK, reflects the increased weight of public interest attached to the removal of a migrant who has committed a criminal offence and has been imprisoned in this country. It also reflects the reality that the child will have been cared for by another responsible adult during the period that the migrant has been imprisoned, and it is established case law that the more pressing the public interest in the removal or deportation, the stronger the claim under Article 8 must be if it is to prevail. That is why we have sought to put that test there—to reflect the gravity of the situation where someone is facing deportation because of criminal offending.

However, the courts have to consider whether the decision has properly had regard to the child’s best interests under Section 55 in all cases. If the courts believe that the decision does not reflect that consideration, they can make their own assessment of what is required, in both Article 8 cases and others.

Amendment 21, in the names of the noble Baroness, Lady Lister of Burtersett, and the noble Lord, Lord Pannick, would reduce from seven years to four the period of continuous residence in the UK required for a non-British citizen child to be treated as a qualifying child as defined in Clause 18. Much has been said about the debates that we had in Committee, so I am not going to go over all that ground. We do not believe that the amendment is appropriate as a matter of policy. First—and I appreciate that here I am slightly repeating myself, but it is important to make this point—the seven-year residence threshold for a non-British citizen to be a qualifying child broadly reflects the approach that has been adopted by successive Governments for over 15 years and acknowledged in case law. The seven-year period, as the noble Baroness recognised, originates from an old Home Office policy that became known as the seven-year child concession. The original policy set out the point at which the Government would no longer seek to pursue the removal of a family where the child had been here for 10 years.

This was revised in 1999 to seven years, and the seven-year point has remained the benchmark ever since in assessing when a child would have significant links to the UK, and indeed has been considered by the courts on many occasions.

What Clause 18 does not say—hopefully, this addresses the point raised by the noble Lord, Lord Pannick—is that we will in all cases remove a child who has lived in the UK for less than seven years. We accept that there will be cases where a child has lived here for less than seven years and therefore would not be a qualifying child but it would be disproportionate under Article 8 to remove that child from the UK. The seven-year benchmark, though, is an indication of the point at which the balance will generally shift against the removal of the child. The benchmark is reflected in the current family immigration rules. It was acknowledged by the High Court as recently as November 2013 in the case of Behary. The court also said that greater significance could be given to seven years’ residence for a child if accrued after the age of four rather than from birth.

Secondly, the primary emotional needs of young children can be fully met only within the immediate family unit, which can move together in and out of the country. We believe that it is generally in the child’s best interests to remain with their parents, and in many cases it would be reasonable to expect the child to leave the UK with their parents. In the case of E-A in July 2011, the Upper Tribunal found that:

“During the period of residence from birth to the age of about four, the child will be primarily focused on self and the caring parents or guardian. Long residence after this age is likely to have greater impact on the well being of the child”.

It therefore does not seem appropriate to set the benchmark at four when the courts have made it clear that it is residence after that age that carries more significance and has a greater impact on the child.

We have not gone down the road of imposing a sliding scale where different periods of residence are given different weightings depending on age. Instead, we have sought to set a clear benchmark of seven years’ continuous residence, whether the child was born here or moved here. We believe that setting a clear benchmark is conducive to transparent and consistent decision-making, which in general terms is in everyone’s interests.

Thirdly, the best interests of foreign children who have been in the UK for less than seven years will still be properly considered, as I indicated in response to the comments from the noble Lord, Lord Pannick. The children duty in Section 55 applies and will continue to apply to all children in the UK, whether qualifying or not. All decisions will continue to be taken on a case-by-case basis following careful consideration of the individual circumstances of the particular child and the need to treat that child’s best interests as a primary consideration. That will be further reinforced in the published guidance for caseworkers.

The noble Baroness, Lady Lister, talked about her experience of losing friends at the age of four, and that was echoed by the right reverend Prelate the Bishop of Leicester, but let us face it: many parents move with their children around the country or out of the country for work or other temporary purposes, and the family leaves to return home or move elsewhere. When a family comes to the United Kingdom for a temporary purpose, they cannot and should not expect to settle permanently in the UK, and should not be able to do so unless they meet the rules for doing so. It is essential that the public interest in controlling immigration and protecting the public be properly weighed in the balance, even when children are involved. We believe that Clause 18 strikes the right balance in this regard.

Finally, I speak in support of Amendment 58, which stands in the name of the noble Earl, Lord Listowel, and my noble friend Lord Taylor of Holbeach. We wanted to reinforce the important point that this Bill does not limit any duty imposed on the Secretary of State or any other person by Section 55 of the Borders, Citizenship and Immigration Act 2009. The duty in Section 55 of the 2009 Act to safeguard and promote the welfare or best interests of children in the UK will continue to apply. Nothing in the Bill—in the Article 8 provisions in Clause 18 or elsewhere—will change this. The best interests of a child in the United Kingdom will continue to be a primary consideration in all cases involving children. The Government have made this clear throughout the passage of the Bill, and this is a welcome opportunity to put the matter beyond doubt by supporting this amendment.

It is proper to acknowledge the work of the Joint Committee on Human Rights, of which the noble Baroness, Lady Lister, is a member, and its careful consideration of this issue. The committee recommended that the Bill be amended to ensure that the best interests of the child are treated as a primary consideration, and that is what the amendment will achieve.

It is right that the clarification provided by the amendment should be in terms of the duty regarding the welfare of children imposed on the Secretary of State or any other person by Section 55. This is because it is compliance with the Section 55 duty and the associated case law which is the basis on which the courts will determine the lawfulness of an immigration decision in terms of its regard for the best interests of a child in the UK. The amendment will also apply to the Bill as a whole. Nothing in Clause 18 alters the duty under Section 55 to consider on their individual facts the best interests of any child in the UK affected by the decision, but it is right that the clarification provided by the amendment should not be limited to Clause 18 but should apply to the Bill as a whole.

One of the points raised by the noble Earl, Lord Listowel, was about unaccompanied children who are placed in local authority support after entering the UK as asylum seekers. The noble Earl has raised this point in the past, as has my noble friend Lord Storey, and my noble friend Lady Benjamin has raised questions about young people who had irregular status before they reached 18. There are concerns about what happens to the support of some of these young people leaving care support after they reach the age of 18 and become appeals rights exhausted cases. It is true that automatic access to support stops if the young person’s asylum and immigration applications have been refused and all appeals have been exhausted. However, the Government very much agree that there should be no abrupt stoppage of support at this stage. Each case needs to be assessed individually, and support should continue in cases where the person is taking reasonable steps to leave the UK or is temporarily unable to leave for reasons beyond their control. We believe that this approach is consistent with the existing legislation, and the Government are very willing to look at practical ways to ensure that it is applied consistently. The Children’s Commissioner is about to issue a report on this issue and we will be considering her suggestions very carefully.

My noble friend Lord Taylor of Holbeach responded yesterday to an e-mail that my noble friend Lady Benjamin sent him asking him to confirm whether young people who had irregular status before they reached 18 fall within local authorities’ duties to former relevant children under Section 23C of the Children Act 1989 until their status is regularised. She also asked him to confirm whether local authorities’ duties regarding homelessness apply to this group. She asked whether, if they have been living in foster care, the extension contained in the recent Children and Families Act applies to enable them to remain in the family. Officials in my noble friend’s department have confirmed with the Department for Education that we expect all former relevant children to receive a full range of leaving care assistance from their local authority until their immigration status is resolved. This includes the new staying-put provisions introduced by the Children and Families Act 2014.

I appreciate that there may have been more detailed concerns raised by the noble Earl, Lord Listowel, relating to individual local authorities. If he has specific concerns, we are more than happy to engage with him and follow these up.

I have taken some time because the issue of children is important. I hope that this response has given some clarification, not least in confirming the commitment that our primary consideration will be the best interests of the child. In these circumstances, I hope that the respective noble Lords will not press their amendments.