Baroness Bennett of Manor Castle:

Moved by Baroness Bennett of Manor Castle

136: After Clause 41, insert the following new Clause—“Amendment to section 117C of the Nationality, Immigration and Asylum Act 2002For section 117C(5) of the Nationality, Immigration and Asylum Act 2002 substitute—“(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner or a genuine and subsisting parental relationship with a qualifying child, and—(a) the effect of C’s deportation on the partner would be unduly harsh, or(b) it would not be reasonable to expect the child to leave the UK and it would not be reasonable to expect the child to remain in the UK without C.”” Member's explanatory statementThis new Clause seeks to ensure that an Article 8 ECHR human rights claim by a foreign criminal sentenced to less than 4 years’ imprisonment can succeed if certain conditions are met. These include that they have a genuine and subsisting parental relationship with a qualifying child (that is, a British child or a child who has resided in the UK for more than 7 years) or a qualifying partner (that is, a British citizen, or someone settled in the UK within the meaning of the Immigration Act 1971).

Noble Lords will note, being terribly observant, that I am not my noble friend Lady Jones of Moulsecoomb. Around about now, I hope, she is emerging from theatre, having had an operation on her foot. She will not be in the House for a few weeks, so I am afraid that I am picking up amendments from my noble friend. I apologise for not having taken part at Second Reading, but the timing of the operation was uncertain, so this is where we have got to.

I am moving Amendment 136 and will speak to Amendment 187, both in the name of my noble friend. They propose two new clauses which would address the rights of children. Most of us will understand—and I hope and believe that most of us accept—that we in the UK regard the rights of children as enormously important and that, when making decisions, we have always to keep in mind the best interests of the child. These will often be British children or children resident in Britain.

To set out a couple of points of context for this, I note that, as many will be aware, Article 3 of the UN Convention on the Rights of the Child is about the best interests of the child being at the centre of decisions. Article 5 talks about the importance of parental guidance for children and children’s rights, and Article 9 says that separation from parents should be avoided wherever possible.

Let us think about what it means for the child if a parent is deported. I refer to some testimony from an organisation called Bail for Immigration Detainees which talks about what it is like when a child sees their parent facing deportation. Obviously, it is devastating when families are torn apart and children face never seeing their parent in the flesh again. If a parent is deported to, say, Jamaica or India, it will be extremely expensive, perhaps impossibly so, for the child ever to be in their arms again. There are also the practical considerations. Families have arrangements. They take children to school, with employment fitting around it—one parent takes the children to school while the other is working. All those arrangements fall apart very suddenly, and the child is the one who suffers.

That is the context of these amendments, which the two proposed new clauses seek to ensure that the Bill addresses. Amendment 136 would amend the Nationality, Immigration and Asylum Act to address the rights of the child. As the explanatory statement sets out, it

“seeks to ensure that an Article 8 ECHR human rights claim by a foreign criminal sentenced to less than 4 years’ imprisonment can succeed if certain conditions are met”.

This is about a genuine and subsisting parental relationship with a qualifying child. It is about the reality of children’s lives, not just this year or next year but for the whole of their childhood.

Amendment 187 would insert into the Bill a new Clause providing a

“Duty to have due regard to family unity”.

Again, this would put the rights of the child front and centre in the exercise of all immigration and asylum functions. It would apply to the Secretary of State, to immigration officers exercising immigration and asylum functions and to the First-tier Tribunal and Upper Tribunal in deciding human rights appeals.

We hear a lot about the problems and difficulties in our society. If we are to be a caring society that prepares our young generations for the future, I put it to the Committee that these two amendments would be a step in the direction of making sure that—as we so often claim to do—we put the rights of children first for the future, for all of us. I beg to move.

My Lords, I will speak on the two amendments together. Section 117C, on the deportation of foreign criminals, which the noble Baroness is seeking to amend, provides at subsection (1) that this deportation is in the public interest. I suggest that the well-being of children is a matter of public interest. There is a lot of noise about the deportation of foreign criminals at the moment, and the noble Baroness has rightly focused on the position of children. As the noble Baroness has identified, the family unit, about which politicians talk an awful lot, is generally in a child’s best interest. I am not sure about there being public interest in children being properly brought up. I do not disagree with the concept, but I am not sure how you define it.

In Amendment 187, there is a reference to maintaining contact by electronic means. I have been aware over the years that, although the means have developed, “Skype families”, as they used to be called, were desperately distressing for everyone concerned. I heard one example many years ago of a child who thought that daddy had no legs, because they had never seen the father below chest level. So, although it is not Skype these days, the principle remains.

I wish the noble Baroness, Lady Jones, a quick recovery and I thank her for bringing this to the attention of the House.

My Lords, I too wish a swift and full recovery to the noble Baroness, Lady Jones of Moulsecoomb. Her colleague has ably set out the thinking behind this Amendment. I suspect I am more sympathetic to it than some members of the Committee, but I suggest the following additional observation on a point that it demonstrates, even to those who feel very anti anyone who has committed a crime ever being able to stay in the United Kingdom.

The amendment demonstrates that Article 8 of the convention is broadly drawn, so there is room for considerable debate about where the line should be drawn on what is a necessary and proportionate interference—for example, to prevent crime or for the purposes of immigration control. A great deal of latitude has always been allowed to signatory states as to where, in the first instance, democratic politics and the elected Government of the day think that discretion should be framed. For many years, Governments of both persuasions have attempted to structure that discretion—just as the noble Baroness, Lady Jones, is doing in one direction in this amendment—by a combination of primary legislation, Immigration Rules and policy. So, anybody who says that one needs to resile from the European Convention on Human Rights because of Article 8 is either misguided or not misguided at all and is doing this for various political reasons.

I have been a lawyer for only 31 years, but my understanding is that there have been only four removal cases since 1980 in which the UK Government have been found in violation of Article 8. So, if people are upset about the way domestic courts are drawing the line in particular cases, I suggest that that is something for domestic legislation—primary or secondary legislation, rules, guidance and so on. It is in no way a justification for some of the toxic debates about international human rights that we have heard in recent days, weeks, months and years.

I too send my best wishes to the noble Baroness, Lady Jones of Moulsecoomb. We shall miss, for a temporary period, her distinctive contribution to this House.

I am puzzled by this Amendment, essentially for the reasons my noble friend Lady Chakrabarti mentions. Article 8 of the European Convention on Human Rights is part of our law. There are suggestions that proposals may be brought forward in relation to its application, but it remains part of our law. The Minister will tell me if I am wrong, but there is nothing in the Bill that purports to remove Article 8.

Article 8 requires adjudicators, tribunals and courts to have regard to family law issues and the interests of children and parents—families—and that seems entirely appropriate. There is a balance to be struck in these cases. We are talking about the deportation of criminals. Sadly, there are people here on a temporary basis who commit serious crimes and who need to be removed. It is right and proper that the interests of families are taken into account, but that already happens. I do not see the need for the amendments.

My Lords, I am sure the noble Lord is aware that there are particular statutory provisions on additional considerations in cases involving foreign criminals, and it is those that I understand the noble Baroness is seeking to amplify.

My Lords, I too offer best wishes, from these Benches, to the noble Baroness, Lady Jones, for a speedy recovery.

I am grateful to the noble Baroness, Lady Bennett, for tabling these amendments but, like several other speakers before me, it is our party’s position that the legislation already strikes a careful and considered balance between the public interest in deporting foreign criminals and the need to protect the rights of their partners and children under Article 8. Section 117C of the 2002 Act is clear: in the case of those sentenced to less than four years’ imprisonment, deportation is the default position unless one of two well-defined exceptions apply. Exception 2, to which Amendment 136 relates, already provides that where there is a genuine and subsisting relationship with the qualifying partner or qualifying child, and the effect of deportation on that partner or child would be “unduly harsh”, deportation should not proceed. So the amendment before us appears to restate protections that are already embedded in the legislation, and the courts already have the discretion—indeed, a duty—to interpret and apply that exception.

We have to be mindful of clarity in the law and not introduce duplicating or potentially confusing provisions. In short, with the greatest respect, the amendments would not meaningfully add to the safeguards already in place, and for that reason we cannot support them.

I am grateful to the noble Baroness, Lady Bennett of Manor Castle, for moving the Amendment. I hope she will pass on the best wishes of His Majesty’s Government and myself to the noble Baroness, Lady Jones of Moulsecoomb, regarding her absence from this House. We look forward to undoubtedly seeing her back for day 6 of the Border Security, Asylum and Immigration Bill, on a date to be determined in October.

The noble Baroness’s Amendment 187 would impose a duty on the Secretary of State to have due regard to the unity of the family in exercising immigration functions. It is important that the noble Baroness has raised this point, but I share the view expressed by both the Opposition front bench and the noble Lord, Lord Pannick, that the amendment is unnecessary.

The protections the amendment seeks to apply are already firmly embedded in law and practice through Section 55 of the Borders, Citizenship and Immigration Act 2009, the Human Rights Act 1998, the public sector equality duty derived from the Equality Act 2010, and the plans for family reform we announced in our immigration white paper in May, which will be before both Houses in relatively short order.

There is already a statutory duty to promote and safeguard the welfare of the child in the UK. Section 55 of the Borders, Citizenship and Immigration Act 2009 ensures that consideration of the child’s best interests is a primary—but not the only—consideration when carrying out relevant functions. The UK’s immigration system rightly supports family migration for British citizens and those settled here, but where individuals wish to establish family life in the UK it is appropriate that they do so on the basis of financial self-sufficiency and the ability to integrate into society.

The system already provides for dependent children through cross-cutting rules in Appendix Children and includes provisions for parents to join or remain with their children in defined circumstances. As noble Lords have mentioned, Article 8 of the European Convention on Human Rights provides a robust framework for assessing the right to private and family life. The Immigration Rules reflect the qualified nature of Article 8, setting requirements which properly balance the individual right to respect for private or family life with the public interest in safeguarding the economic well-being of the UK by controlling immigration, protecting the public from foreign criminals and protecting the rights and freedoms of others.

I note that the noble Baroness, Lady Hamwee, and my noble friend Lady Chakrabarti have spoken in support of that, but I think that Part 5 of the Nationality, Immigration and Asylum Act 2002 has already set out Parliament’s view of what the public interest requires in immigration cases engaging the qualified right to respect for private and family life under Article 8. As the noble Lord, Lord Pannick, has mentioned, it requires the courts to give due weight to this public interest when deciding such cases. This means that the public interest in family migrants being financially independent and being able to speak English, as required by the Immigration Rules, is set out in primary legislation.

Each application for permission under the family routes is considered on its merits and on a case-by-case basis, taking into account the individual circumstances of the case. Where an applicant does not meet all the core eligibility requirements, the decision-maker will go on to consider whether there are exceptional circumstances which would render refusal a breach of Article 8 of the ECHR, the right to respect private and family life. This involves considering whether refusal would result in unjustifiably harsh consequences for the applicant or their family.

As has been mentioned, under Section 149 of the Equality Act, the Secretary of State must have due regard to eliminating discrimination, advancing equality of opportunity, and fostering good relations between those with and without protected characteristics. Given the nature of many protected characteristics, such as age, disability, sex, and pregnancy, the consideration of their impact will inherently include the effect on family life.

As I have said from this Dispatch Box on a number of occasions, the Government are fully committed to complying with international law and protecting human rights. We are therefore proposing reforms to the immigration system but ones which we believe will be compatible with Article 8 of the ECHR. As we announced in the immigration White Paper, the Government will set out a new family policy to cover all UK residents—including those who are British, settled, on work routes or refugees—seeking to bring family members to the UK, which will include clear relationship requirements and an appropriate level of English language skills, and ensure that the family unit has sufficient money to financially support any migrants without reliance on the taxpayer.

We intend to reform Article 8 and consideration of exceptional circumstances by setting out a clear framework, which I hope will be endorsed by Parliament, for those seeking to enter or stay in the UK, including on the basis of exceptional circumstances, who do not fall within our family policies. I respectfully suggest to the noble Baroness that Amendment 187 is unnecessary.

Turning to Amendment 136, I have a stronger disagreement with it than simply that it is not covered by legislation currently. Amendment 136 would replace the Article 8 family life exception for deportation of foreign criminals who have a qualifying child with the lowest test that applies to other cases. Where an Article 8 claim is made by a foreign national offender sentenced to less than four years’ imprisonment, the claim will succeed if they show that the effect of deportation on a qualifying child would be unduly harsh. This is a higher threshold than applies to other Article 8 claims where there is no criminality, recognising the strong public interest in deporting foreign criminals.

We have set out in our immigration White Paper our intention to bring forward legislation to allow us more easily to remove foreign national offenders. We remain resolute in our commitment to deport those who abuse our hospitality by committing crimes in the UK. I am very sorry, but it would not be appropriate to lower the Article 8 exceptions to deportation for foreign criminals, including those who have a qualifying child.

This amendment would undermine our ability to deport serious violent and persistent foreign national offenders, and I therefore cannot support it. Replacing the unduly harsh threshold with a new, lower reasonableness test would open the doors to litigation to determine the parameters of what could be considered reasonable. It fails to adequately reflect public interest in the deportation of foreign criminals. There is an easy way to avoid that conflict in the first place: do not commit the crime. Self-evidently, if you do not commit the crime, then you will not be facing that. I cannot accept the amendment because it lowers the threshold. For that reason, I respectfully ask the noble Baroness to withdraw Amendment 136. I cannot accept it under any circumstances, and I hope she can accept the explanation on Amendment 187, which I think is unnecessary for the reasons I outlined.

My Lords, I thank all noble Lords for their kind wishes to my noble friend. I will certainly be passing all those on as soon as possible. I thank all noble Lords for contributing to this debate—including the Minister. However, I will point that in his closing comments he repeated several times, “Do not commit the crime”. But the child we are talking about here has not committed any crime. It is the future of the child’s whole life and family life that we are talking about—focusing not on the criminal but on the child.

I thank particularly the noble Baroness, Lady Hamwee, for raising a very important point about the well-being of children. We are focusing not just on those children but on the public interest. The future of our children is the future of all of us. The noble Baroness made a very useful point by noticing how often the unity of the family is brought up in public debates but then seems to be excluded from certain parts of the conversation.

The noble Baroness, Lady Chakrabarti, made a really important point in the context of our current national debate for those who would see us withdraw from the European Convention on Human Rights. It is actually a very flexible instrument, which reflects why these amendments have been tabled. The noble Lord, Lord Pannick, asked why these amendments were needed and said that it is all there in Article 8 judgments. The noble Baroness, Lady Chakrabarti, said that we can set the guardrails; we can say what Article 8 means and that is what these amendments seek to do.

None the less, we have had a useful debate. The noble Baroness, Lady Hamwee, mentioned Skype families. That is an issue I have been working on for a very long while. I think we might have to get a new term—maybe Teams families or Zoom families. It is important to think about the reality. Let us think of a child of seven or eight who knows they are never going to be held in the arms of a parent again. How does the other parent, if there is another parent there, explain that to the child?

I am sure my noble friend will be looking very closely at this debate and taking on board all the comments so, for the moment, I beg leave to withdraw the Amendment.

Amendment 136 withdrawn.