(10 years, 1 month ago)
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The Earl of Sandwich
“( ) An appeal to which subsection (3) applies must be brought from within the United Kingdom if the appellant has a child in the United Kingdom, and it would be in the best interests of that child for the appeal to be brought from within the United Kingdom.”
The Earl of Sandwich (CB)
We had a long discussion about children earlier in the afternoon, and I am bringing back the subject of children today under the heading of “deportation”. This amendment is about the children of parents who are facing deportation. The Minister may remember that I was away for most of Committee, but I mentioned it at Second Reading and pointed out that, under the Bill, against the advice of the JCHR, individuals removed from this country may be prevented from challenging their deportation if they are no longer in the UK, and that their children, if separated from them for this or for other reasons, may be in particular difficulty. The noble Baroness, Lady Hamwee, expressed similar concerns in her amendment in Committee.
If the parent is removed, how will the Home Office discover the true situation of the child? As the noble Lord, Lord Pannick, said in that debate, in the light of the changes going on to judicial review, and other changes, there are real concerns about whether an effective practical remedy will remain available. The noble Lord, Lord Avebury, also brought this issue up earlier today. There will be huge practical barriers to individuals appealing their deportation from abroad. Such cases often turn on issues of credibility. Appellants will be severely disadvantaged by not appearing in court and, in the present climate of legal aid cuts, they will face serious problems in accessing any legal advice.
The noble Baroness, Lady Hamwee, had difficulty with a similar amendment, which is why I am bringing it back with an additional reference to the UN Convention on the Rights of the Child. Not surprisingly, this convention states that the child should not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine that such separation is necessary for the best interests of the child. Earlier, the noble Lord, Lord Taylor, gave yet another assurance on this. I note that Amendment 58 is about a duty regarding the welfare of children, and that the amendment in the name of the noble Lord, Lord Watson, concerns the best interests of children.
This matter surely also covers the point made in a previous debate by the noble Lord, Lord Bourne, that there might be ambiguity about what the best interests of the child were, and that the child might be better off with relations abroad. However, that does not, of course, cover every case. According to legal experts I have consulted, the safeguards under the Bill are insufficient. The noble Baroness, Lady Smith, said that there was still uncertainty in the clause as it stands. Therefore, my first question is: how will the Government consider a child’s best interests before deporting a parent to appeal from abroad?
The noble and learned Lord, Lord Wallace, said that the power was a discretionary one, applied only where there is not a risk of serious irreversible harm, and that it will therefore not be applied in all Article 8 cases. However, a parent’s deportation may result in grave harm to a child that is not irreversible. Therefore, my second question is: will parents be deported before an appeal in cases where this action will cause serious harm to their child, but only serious harm that the Home Office deems will not be irreversible? In Committee, the noble and learned Lord made it clear that we are dealing largely with criminals as well as failed asylum seekers. That may be so, yet one in three of these people does not fall neatly into that category; we know that because, in 2012-13, 32% of deportation appeals succeeded.
A number of these cases concern parents with British children or settled children who would be significantly harmed by their parents’ deportation. There are plenty of examples from the children’s consortium and Bail for Immigration Detainees which I will not relate today. However, the 2013 UNHCR report highlighted cases where Home Office decision-makers failed adequately to consider the child’s best interests, including in relation to Article 8 of the ECHR. The Home Office can already prevent repeated appeals by certifying claims as clearly unfounded, but Clause 16(3) will prevent people with arguable cases accessing justice.
The noble and learned Lord gave the assurance that, in exceptional circumstances, the power would not be applied—so what are the exceptional circumstances? It is argued that exceptional funding also provides a safeguard. However, the Joint Committee found in December 2013 that out of 746 people who had applied for exceptional funding, only 15 were granted funding, and two of those were immigration cases. We are back to the same old argument. In the experience of Bail for Immigration Detainees, detainees seldom have the skills needed to make their own applications—I know that the noble and learned Lord has heard this time and time again, but it is true—and solicitors rarely make applications because the work has to be done at the risk of non-payment.
I will give just one case study: that of Simone and Ray. Simone was trafficked into prostitution in the UK for three years and was then convicted of a drug-related offence. Her son, Ray, was a British citizen. He was less than one year old when she was arrested, and nearly four by the time of her release. During her sentence, he repeatedly asked for his mother, cried in his sleep, stopped eating properly and screamed uncontrollably after phone conversations with her.
The Home Office argued that Ray could leave the UK with Simone, but by this time he had close bonds with his father, who could not leave the UK for other reasons. Simone successfully appealed her deportation—but if Clause 16 becomes law, people like her will be deported before they can appeal.
Finally, as we are talking about removals, I heard only yesterday that the Home Office has decided to stop offering assisted voluntary return to anyone held in immigration detention as of today, 1 April. This scheme is operated by Refugee Action, through its Choices service. What is the purpose in ceasing to offer assisted voluntary return to those in detention? Do the Government not appreciate the negative effect this will have on removals and on the co-operation of detainees? I beg to move.
Lord Watson of Invergowrie (Lab)
My Lords, I shall speak to Amendments 16 and 20 in this group, which appear on the Marshalled List in my name.
Amendment 16 would ensure that the Bill recognised that the promotion of the best interests of the child is not simply a matter of the rights to be interfered with being in the public interest but that the promotion of those best interests is, in itself, in the public interest. In its current form, Clause 18 does not allow for proper consideration of the best interests of all children, as required by UK and international legislation. Despite government Amendment 58 reiterating their commitment to the Secretary of State’s duty under Section 55 of the Borders, Citizenship and Immigration Act 2009, Clause 18 does not make clear the need for the best interests of children to be a primary consideration in any Article 8 case involving a child. That includes those who are not British citizens and those who have not lived in the UK for at least seven years.
Amendment 58 does not address the concerns raised by non-governmental organisations, including the Refugee Children’s Consortium, about the lack of an explicit provision in Clause 18 to have regard to children’s best interests. What is required is a provision stipulating what judges must have regard to in the public interest when considering Article 8 of the European Convention on Human Rights in respect of family and private life.
Courts and judges are not under a statutory obligation to comply with the Section 55 duty. Instead, they review the Home Secretary’s decisions and actions in the light of her own duties. The courts have made it clear that children’s rights are a clear public interest consideration in addition to their own personal interests. As the Joint Committee on Human Rights notes in its scrutiny of the Bill, Parliament is entitled to put into primary legislation that which it considers to be in the public interest. The lack of a clear statement setting out the importance of children’s best interests as a factor to be considered creates a risk that children’s best interests will not be taken into account as a matter of public interest to the same degree as those public interest considerations listed in Clause 18. In its evidence to the Bill Committee, the Immigration Law Practitioners’ Association stated that Clause 18 directs attention to some factors at the expense of others. The most obvious missing factor is the best interests of children.
In 2012, the Supreme Court held in the case of HH—UKSC 25—that children’s interests are also public interests and not just private rights, stating,
“although the child has a right to her family life and all that goes with it, there is also a strong public interest in ensuring that children are properly brought up”.
In this respect, the Bill is not consistent with established case law and gives the impression that children’s interests amount to no more than the private and personal interests of an individual and their family. They clearly amount to more than that and this should be reflected in the Bill.
Amendment 20 reflects the fact that “unduly harsh” is an incorrect test of the context of considering what is best for a child, whereas “disproportionate” is known and well understood. New Section 117C of the Nationality, Immigration and Asylum Act 2002, inserted by this Bill and relating to Article 8 of the European Convention on Human Rights, states:
“Exception 2 applies”—
where there is—
“a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C’s deportation on the partner or child would be unduly harsh”.
The “unduly harsh” test in relation to children is not consistent with the best interests principles. This test of “unduly harsh” is a legally defined term within the context of refugee protection and internal relocation. I should like to cite an example and I do so in due deference to the noble and learned Lord, Lord Hope. I hope that he will not mind if I quote from a case over which he presided in 2007—the case of the Secretary of State v AH (Sudan) and others. In that judgment, the noble and learned Lord was quoted as having stated in another case:
“‘The question ... is whether it would be unduly harsh to expect a claimant who is being persecuted for a Convention reason in one part of his country to move to a less hostile part before seeking refugee status abroad. The words ‘unduly harsh’ set the standard that must be met for this to be regarded as unreasonable. If the claimant can live a relatively normal life there judged by the standards that prevail in his country of nationality generally ... it will not be unreasonable to expect him to move there’”.
However, I do not believe that that test can be applied within the context of considering children’s best interests. Surely a child should not be expected to live a relatively normal life judged by the standards that prevail. That is not and, I submit, cannot be a best interests consideration. When considering a child’s best interests, a range of issues need to be taken into account, such as the child’s immediate safety and their access to, and the quality of, vital services such as healthcare and education. In addition, under the UN Convention on the Rights of the Child, every child has a right to be cared for by his or her parents. In fact, Article 9 says:
“States … shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests”.
The audit carried out by the UNHCR last year of Home Office procedures highlighted that there is no systematic collection or recording of the information necessary and relevant to a quality best-interests consideration in family cases. This includes a lack of any mechanism to obtain the views of the child and to give those views weight in line with age and maturity. Research carried out by the Greater Manchester Immigration Aid Unit into unaccompanied children’s asylum cases found that in 24 of 34 cases analysed, the Home Office failed to carry out any determination of the child’s best interests at all. The Joint Committee on Human Rights highlighted similar concerns in its scrutiny of this Bill, noting that without further clarity,
“there is a danger that front-line immigration officials … will be unclear about the relationship between the children duty in s. 55 and the new tests … which use different and unfamiliar language”.
The Government have said that, despite the introduction of tests in the courts, the courts would still be bound by the duty to promote the welfare of children under Section 55 of the Borders, Citizenship and Immigration Act 2009 for all cases involving children. However, Clause 18 is likely to add further confusion, not least for decision-makers, as to how best interests are to be considered. Therefore, I believe that effective judicial oversight is crucial in ensuring that children’s best interests are taken into account in any case involving a child, and these considerations need to be made clear in the Bill.
In conclusion, considering whether it would be duly harsh to separate a child from his or her parent is inconsistent with the obligations to consider the child’s best interests. Perhaps I might invite the Minister to explain just what he understands “duly harsh” and “unduly harsh” to mean. At precisely what point does “duly harsh” become “unduly harsh”, and who decides where the line is crossed? The use instead of the term “disproportionate” at least allows for a balancing exercise within the well established approach to interference with Article 8 rights, which must include consideration of best interests. I very much hope that the Minister will take these points on board and I look forward to his response.
Baroness Lister of Burtersett (Lab)
My Lords, I rise to speak to Amendment 21, supported by the noble Lord, Lord Pannick, and now, I believe, by the noble Lord, Lord Roberts, and perhaps in spirit by the right reverend Prelate the Bishop of Leicester.
First, however, I welcome Amendment 58 in the names of the noble Earl, Lord Listowel, and the noble Lord, Lord Taylor of Holbeach. This addresses one of the concerns raised by the Joint Committee on Human Rights, of which I am a member, as to how the Bill’s provisions were to be read alongside the Section 55 duty to safeguard and promote the welfare of children. But, sadly, as my noble friend has already said, it does not meet our related concern that Clause 18 should make explicit that the best interests of children must be taken into account as a primary consideration. I would be grateful if the Minister could explain on the record the implications of Amendment 58 for Clause 18, building on what the noble Lord, Lord Taylor, said earlier. As it is, I am still perplexed as to why the Government refuse to accept the best interests amendment, given that the Minister said very clearly in Committee:
“We believe that the children’s best interests must be a primary consideration”.—[Official Report, 5/3/14; col. 1384.]
The Earl of Listowel (CB)
My Lords, before speaking to my amendment I would like to say just a few words on what the noble Baroness, Lady Lister of Burtersett, has just said. She reminded me very much of the work of the child psychotherapist Anna Freud, who wrote several books on law and children with two eminent jurists from Yale University in the United States. She wrote about the difference between child time and adult time. A year in the life of a child is obviously disproportionately large compared with a year to an adult. We are all very concerned about children who languish in the care system who are just sitting waiting to be adopted. Even six months for a very young child is a huge chunk of their lives. I have a lot of sympathy for what the noble Baroness said.
I shall speak to Amendment 58 standing in my name and that of the Minister, the noble Lord, Lord Taylor of Holbeach. There has been concern that this Bill may weaken the welfare rights of children. The purpose of my amendment is to provide clarification that the rights of children will be undiminished.
I am most grateful to the Minister for adding his name to this amendment. I could have wished that the amendment went further to include reference to the best interests of the child, as was mentioned earlier in a debate this afternoon. However, having discussed this with officials, I understand that there are procedural difficulties that prevent the Government agreeing such a reference in the legislation at this stage of the Bill. I regret that, but I am grateful at least for this. I hope that the Minister will reiterate and make clear in his reply that the best interests of the child remain a priority throughout this legislation.
I also take this opportunity to reiterate my thanks to the coalition Government for having done so much to improve the welfare of children detained with their families. I have followed this issue for many years and the change has been remarkable and wholly in the right direction. I am most grateful that the Government are now enshrining those changes in this Bill. I also appreciate the opportunity that the noble Lord, Lord Storey, and I had to meet the Minister, the noble Earl, Lord Attlee, and officials to discuss our concerns about the welfare of young care leavers who arrive here as unaccompanied asylum seekers. I think that the Minister shares our concern for these young people—18, 19 and 20 year-olds—who are resident here without their parents, having experienced the loss of their homeland and their families, often having made a perilous journey to this country as children.
I hope that the report on these young people, to be published by the Children's Commissioner for England very shortly, will be favourably received by the Minister. I trust that any noble Lords who have been a parent or worked with young people will think about what it would be like for their own children, bereft of their parents, unguided and uncertain in a foreign land. I hope that they will keep that at the forefront of their minds when considering the immigration status of these young people and wish to treat these young people with consequent humanity.
I would be most grateful to the Minister if he would consider writing to local authorities to remind them of their particular duties to these young people. Many local authorities extend themselves very far to help them, but there remains evidence that not all authorities are clear about their duties in this area. I look forward to the Minister's reply.
Lord Pannick (CB)
My Lords, I added my name to Amendment 21, which is in the name of the noble Baroness, Lady Lister of Burtersett. As she explained, some of the provisions in Clause 18 depend on a relationship with a qualifying child. I am doubtful of the wisdom of imposing rigid categories in a context that inevitably depends on the circumstances of individual cases. It seems that the inevitable consequence will be to create anomalies, as here, with the impact on a child who has lived in this country for a continuous period of four, five or six years. If we are to legislate by reference to the number of years that a child has been in this country, a cut-off period of four years seems much more appropriate than seven years. If the child is aged between six and 10, four years will form the major part of his or her conscious experience.
The Lord Bishop of Leicester
My Lords, I want just to assure your Lordships that as the noble Baroness, Lady Lister, suggested, I support Amendment 21 in spirit. I also support it in practice. It seems that the arguments, from any understanding of child development, are clearly overwhelming. I speak as a former chair of the Children’s Society and as a member of the commission that published the A Good Childhood report on behalf of the Children’s Society some four or five years ago, which was based on the evidence of more than 20,000 children, many of them very young children. They made it very clear, even at the age of five or six, that friendships were an absolutely primary part of their understanding of their well-being. This is documented and spelt out in that report, as indeed it is in many other more academic reports.
I would be happy to support this amendment as it stands or even if it is reduced to fewer years. On the basis of any understanding of child development, the argument for a cut-off period of four years seems overwhelming. I hope the Minister will be able to respond positively to the amendment.
Baroness Benjamin (LD)
My Lords, I congratulate the Government on accepting the noble Earl’s amendment, Amendment 58, as it addresses the unfortunate and desperate situation that many young people find themselves in. With regard to the other amendments in the group, let us not forget that childhood lasts a lifetime, and that we need to try to give children a happy early passage in life however, wherever and whenever we can.
I take this opportunity to follow up briefly on a few of the concerns that I raised in Committee about young people who find themselves with non-immigration status. Worryingly, every year more and more are finding themselves in that position. I ask my noble and learned friend the Minister for clarification on two points. First, will he confirm that young people who had irregular status before they reached 18 will fall within the local authority’s duty to “former relevant children” under Section 23C of the Children Act 1989 until their status is regularised? Secondly, do local authority duties regarding homelessness apply to this group and, if they have been living in foster care, does the extension contained in Section 98 of the recent Children and Families Act apply to enable them to remain in the family?
Lord Hope of Craighead (CB)
My Lords, I want to add just a word or two with reference to Amendment 16, in the name of the noble Lord, Lord Watson of Invergowrie, which would insert a new provision dealing with “the best interests of children”. In supplement to what he said, the Supreme Court has paid a lot of attention over the four years of its existence to the UN Convention on the Rights of the Child, to which this country is a signatory. Almost at every opportunity where the issue has arisen, it has stressed the need to promote the best interests of children in dealing with immigration issues, so the point is of some general importance.
The point I wish to draw to the Minister’s attention concerns proposed new Section 117A(2), inserted by Clause 18, which contains the phrase:
“In considering the public interest question, the court or tribunal must … have regard”—
to the provisions that follow. Those words remind one of the words in Section 2 of the Human Rights Act 1998. The noble and learned Lord may recall that there is some debate going on as to the extent to which the courts in this country must feel themselves bound by decisions of the Strasbourg court or whether in performing the Section 2 duty of having regard to—I think the wording of the Act is “take into account”—they can rate what they see and weigh it up but not necessarily feel themselves bound to follow it. The question is: which of these two alternative lines is the Minister contemplating by the use of the phrase “must have regard to”? Is this something that is in the form of a duty, which gives no leeway to the court and therefore it must follow the language precisely as it finds it in the succeeding subsections, or is it, as some people would say about the Strasbourg court, that one can see what is said but there is room for manoeuvre at the same time?
The noble Lord, Lord Watson, explained the point very clearly. When one is considering any public interest considerations that involve children, one will have regard to the existing jurisprudence, the convention rights and so on. The fact that children are not mentioned expressly, except in the very helpful new clause coming in via Amendment 58, does not mean that the court cannot have regard to their best interests. If the Minister would confirm that, that would be extremely helpful, given the nature of the language in proposed new Section 117A(2).
As I hope the noble and learned Lord will appreciate, there will be some read-across from the way the jurisprudence has developed with reference to the Human Rights Act to how one starts the whole exercise that this new clause is dealing with. It is really very important to be clear about how one approaches the entire package in understanding the various criticisms that have been made.
The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD)
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.
The Earl of Sandwich
My Lords, we have gone over the hour and the Minister has had to deal with a whole range of amendments. The underlying thing has been the primary consideration of the best interests of the child.
It was good of the Minister to respond so quickly to a question which I put rather abruptly. He has given a fairly harsh, Home Office reply but I am grateful for that all the same. There is no doubt about the good faith of the Ministers that we know here; it is the system that they represent. They know that it can never be perfect. In fact, the noble Lord, Lord Taylor, mentioned earlier that improvements are being made all the time. This is the whole point of these debates.
I was not satisfied with the answer. I thought that my amendment would provide a simple subsection reiterating what has already been stated and principles that have already been established. Nevertheless, the Minister has clarified and has been very helpful. I hope that the noble Baroness, Lady Hamwee, will also appreciate that we have gone into the same subject as we did four weeks ago. Yet clarification is helpful to the judiciary and others.
My noble friend Lord Listowel will have to wait a very long time before he can reply to the Minister’s response on Amendment 58, which is at the end of the Bill. However, that new amendment has been a really useful step forward. Meanwhile, I beg leave to withdraw Amendment 15.
Lord Pannick
Lord Pannick
My Lords, Amendments 17, 18 and 19 are in my name and that of my noble and learned friend Lord Hope of Craighead. I thank the noble Lord, Lord Taylor, the noble Earl, Lord Attlee, the Immigration Minister, Mr James Brokenshire, and members of the Bill team for the helpful—to me, at least—meeting that we had last week.
Your Lordships had a wide-ranging debate on Clause 18 in Committee. These amendments have a narrow focus. Amendments 17 and 18 address the parts of Clause 18 that tell courts and tribunals to give little weight to private life in defined circumstances—for example, where a relationship with a British citizen was established in this country at a time when the claimant was here unlawfully. Amendment 19 addresses the provision that says that the public interest requires deportation in defined circumstances.
These amendments would modify the absolute nature of the relevant parts of Clause 18. My understanding from the debates that we had in Committee is that there is no dispute from the Government about two propositions; I would welcome assurances on this. The first proposition, which I understand to be uncontroversial, is that there may be compassionate cases—it may be unusual, but there may be cases—where, on the particular facts, Article 8 requires more than little weight to be given to the relevant factors; or where Article 8 requires no deportation despite the terms of new Section 117C. Such cases may be unusual or out of the ordinary, but they are at least conceivable.
The second proposition, which I understand to be uncontroversial—again, I would welcome assurance on that—is that the Government, I think, accept that if the court or the tribunal concludes that Article 8 requires more than little weight to be attached to the factors in a particular unusual case, or Article 8 requires no deportation, the domestic court or tribunal must apply Article 8. That clause is not intended in any way to amend the obligations of the courts or the tribunal under the Human Rights Act. My understanding—I urge the Minister to correct me if I am wrong—is that Clause 18 is not intended in any way to override the principle stated by Lord Bingham of Cornhill for the Appellate Committee in 2008 in the case of EB (Kosovo) at paragraph 12, that,
“the appellate immigration authority must make its own judgment and that judgment will be strongly influenced by the particular facts and circumstances of the particular case … there is in general no alternative to making a careful and informed evaluation of the facts of the particular case. The search for a hard-edged or bright-line rule to be applied to the generality of cases is incompatible with the difficult evaluative exercise which article 8 requires”.
These amendments seek to ensure that there is consistency between the wording of Clause 18 and the obligations of courts and tribunals. The helpful letter dated 28 March from the noble Lord, Lord Taylor, pointed out, accurately, that it is far from unique for legislation to identify matters for courts to take into account, and the noble Lord gave a number of examples. However, in each of those examples Parliament told courts and tribunals to have regard to particular principles or factors. In none of those examples did Parliament tell courts and tribunals what conclusion to reach. My concern remains the absence of any recognition in the clause as drafted that they may be cases where the Government’s preferred result is not consistent with Article 8. My concern is the suggestion in the legislation that the court or tribunal should arrive at a particular result even though the Government, as I understand it, recognise that the court or tribunal will be required to enforce Article 8.
A long time ago, AP Herbert wrote the very entertaining Misleading Cases. My concern is that Clause 18 is misleading legislation, and we ought to do something about it. I beg to move.
Lord Hope of Craighead
My Lords, I added my name to the noble Lord’s amendment because I, too, find it difficult to know quite how the court will deal with a particular case where it feels that more than little weight should be attached to the various matters referred to in the various paragraphs that are under consideration. It is quite striking when you look back—as I invited the noble and learned Lord to do a moment ago—to the earlier part of new Section 117A, that there is no attempt to modify, appeal or amend Section 6 of the Human Rights Act itself. If you go to Section 6, of course it takes you back to Section 2, which tells the court that, in considering whether there is a breach of the duty under Section 6, it must take into account decisions of the Strasbourg court.
It is not inconceivable, although it may be unusual, there could be a real problem for a court which is following the Human Rights Act directions and is trying to take account of what one finds in new Section 117A, bearing in mind the point that the noble and learned Lord made to me not very long ago about the purpose of setting this out in the Bill. I think that I entirely understood him to say that the purpose of this was to lay down clear guidance to the court, which the court is expected to follow. I absolutely understand the reasons why the Minister says that, but that makes it all the more important, I respectfully suggest, for the Government to avoid the temptation to be too prescriptive about the conclusions that must be reached.
The problem that comes up so often when one thinks about this sort of thing is that legislation is a fairly blunt instrument. Last week, we debated the IPP legislation; the previous Administration set out tests that the judges were required to apply in sentencing prisoners to indefinite terms of imprisonment, but it turned out that in practice the judges had to sentence people to draconian sentences more often than they would have done if left to themselves, which created a very real administrative problem for the Government. That is an example of how a blunt instrument can be too blunt and can avoid dealing with a case in the way that Lord Bingham of Cornhill explained in the case of EB (Kosovo), to which I was also a party.
It really is important to avoid being too prescriptive. Use of the word “normally” gives us that little bit of leeway. If it is not there, the court is driven to finding another way round the problem and, if it finds the prescriptive language in the various subsections that we are looking at, it will have another look at the way in which the whole chapter was introduced by the phrase to which I drew attention earlier: “must have regard to”. Then it will say, “All right, it’s a rule, but it’s not something that we must follow because we have only to have regard to it”. That takes us back to the debate about the Strasbourg court that I was talking about; those who do not particularly like to be told what to do by Strasbourg would rather not have regard to it, because they do not feel that they are obliged to.
If the Minister would like, as I think he would, to have courts regard these as principles or rules to which they should always have regard in the interests of the public at large, I suggest that we should avoid the trap that has been created, otherwise the courts in these unusual cases will feel that they have to find another solution. That may, in the longer run, be more damaging to the overall package that has been put forward in the interests of trying to solve this problem. Once you undermine the basic philosophy that the Minister is putting across, which I understand, by creating this trap for the courts in these particular cases by telling them what the conclusion must be, you begin to devalue the whole package. I think the Minister would rather not do that. That is why I felt that I should support the noble Lord, Lord Pannick, and his amendment.
Baroness Lister of Burtersett
I speak briefly in support of the amendment. The noble Lord, Lord Pannick, referred to the letter from the Minister, which said that this is not a novelty and then gave various examples. However, it seems to me that the examples are rather different in kind. They said “particular weight” rather than “little”. I refer back to the report from the Joint Committee on Human Rights, which acknowledged that,
“Parliament often establishes statutory presumptions to be applied by courts and tribunals when they are determining individual cases, and occasionally directs that ‘particular weight’ is to be given to a particular consideration in a judicial weighing exercise. Nevertheless”—
this is emphasised—
“we are uneasy about a statutory provision which purports to tell courts and tribunals that ‘little weight’ should be given to a particular consideration in such a judicial balancing exercise. That appears to us to be a significant legislative trespass into the judicial function”.
The amendment offers the Government a way out of that “trespass”, and I hope that the Minister will feel able to take it.
Lord Wallace of Tankerness
My Lords, I thank the noble Lord, Lord Pannick, the noble and learned Lord, Lord Hope of Craighead, and the noble Baroness, Lady Lister of Burtersett, for giving us an opportunity to revisit Clause 18.
I do not propose to repeat what I said on the previous group of amendments—which I think has been acknowledged by the noble and learned Lord, Lord Hope—as to why the Government came to the position that they did and thought that it was better in the circumstances to include these rules in the Bill. I say to the noble Baroness, Lady Lister, that I do not believe that this is a trespass into the judicial function. As I indicated earlier, I think that one of the things that have to be taken into account, given that Article 8 rights are not absolute rights, is the public interest. It is appropriate and proper that Parliament determines what the public interest is. That is what we seek to do in Clause 18. Thereafter, it is quite properly the function of the courts to apply the law, having considered all the circumstances.
In moving his amendment, the noble Lord, Lord Pannick, said that this debate had a narrow focus, unlike the earlier debate that we had in Committee. Amendments 17 and 18 propose to qualify, by inserting the word “normally”, the provisions in Clause 18 that little weight—in terms of the public interest—should be given to private life, or to family life with a British or settled partner, which was formed when the person was in the United Kingdom unlawfully, or to private life formed with precarious immigration status.
In a similar vein, Amendment 19 proposes to qualify the provision made by Clause 18 for the public interest in the deportation of a foreign criminal who has not been sentenced to imprisonment of four years or more, and who seeks to prevent their deportation by relying on their private life, on their family life with a British or settled partner, or on their parental relationship with a British child or a foreign child who has been resident in the UK for seven years or more.
These amendments are not required to ensure that Clause 18 is compatible with our obligations under the European convention, or to ensure that it properly reflects judicial discretion in determining proportionality under Article 8 in individual cases. It will remain a matter for the courts to consider—not just “normally” but in every case—whether the interference in the individual’s right to respect for private and family life is justified by the relevant public interest considerations. However, the Strasbourg court has made it 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 18 seeks to reflect Strasbourg case law, which has consistently said that little weight should be placed on private or family life formed during a time when a person’s immigration status is precarious—for example, in the case of Rodrigues da Silva and Hoogkamer v the Netherlands. I fully appreciate the point made by the noble and learned Lord, Lord Hope, that flexibility might be lost when measures are put into primary legislation, although I am not saying that it is a straitjacket. Indeed, one of the considerations that the Government had to weigh up when the decision was taken that it was better to put these matters into primary legislation was that it does not have the same flexibility as rules, given what had been said in the Upper Tribunal regarding matters which were otherwise found in the Immigration Rules. No doubt successors in office will have to keep an eye on Strasbourg jurisprudence. I recognise that it is more difficult to amend primary legislation due to the nature of the parliamentary timetable. Nevertheless, we thought that it was better to do what we did. As I indicated, what we believe we are doing with regard to the reference to “little weight” is to reflect current Strasbourg case law.
Those who enter the United Kingdom for a temporary purpose, such as work or study, can have no automatic expectation of being allowed to settle here. Any private life 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 United Kingdom unlawfully can have less expectation of being allowed to stay here, and still less those who commit such serious criminal offences that they fall to be deported from the United Kingdom.
As was mentioned in the speeches, the amendments reflect a concern that, if little weight is given to family or private life in these circumstances, a claim under Article 8 can never succeed. That is not the case. The fact that a private or family life has been established should be given little weight, consistent with the case law, but that does not mean no weight is given to that private or family life.
Where there are other factors to be put in the balance—such as the presence of children, disability of the partner, contribution to the community or the fact a young adult has spent over half their life in the UK and has no ties with their country of birth—these factors will all need to be weighed in the balance to decide whether it would be disproportionate to remove the person from the United Kingdom. The need to have regard to these other factors is reflected in the current family and private life Immigration Rules. The case law and Home Office guidance also make it clear that there may be other exceptional factors that need to be taken into account to ensure the decision is compatible with the European Convention on Human Rights.
The addition of the word “normally” is therefore unnecessary, if the aim is to ensure that other relevant factors can be taken into account. It is unhelpful in that it gives no indication of the circumstances when little weight should not be given: in other words, what would be the abnormal case? It is potentially more restrictive, and arguably even incompatible with the European convention, if the implication is that normally these additional factors will not be taken into account. In fact, they should always be taken into account.
I agree with the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Hope, that where little weight should be given to family or private life, that does not mean no weight. In response to the specific points made by the noble Lord, Lord Pannick, I confirm that there may well be compassionate or exceptional cases where Article 8 requires weight to be given to these or other factors or Article 8 requires no deportation. I confirm that the courts must continue to apply Article 8 under the Human Rights Act and that Clause 18 does not override the dicta of the late Lord Bingham, in EB Kosovo, as to the appellate function of the courts in deciding cases under Article 8. Clause 18 enables other circumstances to be taken into account. The insertion of “normally” is neither necessary nor desirable to achieve that outcome.
The noble Lord, Lord Pannick, referred to AP Herbert’s “Misleading Cases”. I well remember the series which starred Roy Dotrice, with Alastair Sim on the Bench. Looking back, it is quite possible that that is where I started in the career I eventually pursued. It was a fantastic series, well worthy of a repeat. This is not a misleading clause. It sets out what the public interest requires but it does not detract from the need for the courts to decide what Article 8 requires in a particular case. I hope that, with these reassurances, the noble Lord will agree to withdraw the amendment.
Lord Pannick
I am grateful to the noble and learned Lord, Lord Hope of Craighead, and the noble Baroness, Lady Lister, for their support and to the noble and learned Lord the Minister, in particular, for giving the assurances I sought. I am still concerned that there remains a conflict between what I see as the absolutist language of the clause and the flexibility which the noble and learned Lord recognises that Article 8 requires by reference to the circumstances of individual cases. I fear that this clause will cause confusion and it will foster litigation. However I beg leave to withdraw the amendment.
The Deputy Speaker (Lord Haskel)
I draw to your Lordships’ attention the fact that the annunciator is stuck and has been showing the name of the noble Baroness, Lady Lister—but they are working on it.
Amendment 22
“Residence permit: domestic violence
(1) A person (P) shall be entitled to a residence permit for three months for rest and reflection where—
(a) P is married, in a civil partnership, or in a durable relationship with someone who is lawfully in the United Kingdom; and(b) P is in the United Kingdom as a dependant of that other person; and(c) the relationship breaks down as a result of domestic violence.(2) The residence permit shall be available to P and any dependants already in the United Kingdom with entitlement to work.”
Baroness Smith of Basildon (Lab)
My Lords, I suspect that somewhere it will be recorded that my noble friend Lady Lister made a very long speech.
I shall be brief on this amendment. This was an issue that I raised in Committee and I raise it again because I was disappointed with the Minister’s response at that stage and I thought that I would have another shot at getting some clarity on it.
Amendment 22 would provide that a person lawfully married or in a civil partnership or a durable relationship with somebody in the UK would have a residence permit for three months for rest and reflection where the relationship had broken down as a result of domestic violence. The noble Lord and I have spoken on other occasions with regard to this Bill on domestic violence issues, and he will know of my concern that victims of domestic violence should be given every opportunity to deal with the issues that they face and not have them further complicated.
The amendment is designed to provide respite or a breathing space for an individual at a very challenging and difficult point in their relationship and in their life. Currently, if someone is in the UK and is the spouse of a student or a points-based system visa holder and the relationship breaks down as a result of domestic violence, they have only one option, which is immediate return to their country of origin. That might involve leaving any employment or uprooting any children who may be in school, and the point was made earlier about people having friendships and relationships. That would leave somebody in an abusive relationship with a very difficult choice: they would have to stay in that relationship, face immediate return or overstay. Under the amendment, the person would be able to consider options and might be able to make an application to remain in the country in their own right or return to their country of origin in a safe and rather more dignified way with, one hopes, the ability to make arrangements for their children and their work. I accept that the drafting is not perfect but I hope that the Minister will understand the objective of the amendment.
We tabled a similar amendment in Committee and the Minister responded by saying:
“If an individual is the victim of domestic violence, they have full protection of the criminal and civil law and of the law enforcement agencies, regardless of their immigration status. That is not in question”.
But nor was it my question. He went on to say:
“But that is not to say that all victims of domestic violence should expect that they can stay here in the UK”.
That, again, is not the point of the amendment. He said:
“There is provision in the Immigration Rules to grant indefinite leave to remain to victims of domestic violence who are here as the partners of someone who is a British citizen or settled in the UK, or a Foreign or Commonwealth member of Her Majesty’s forces who would be able to become settled were it not for service in those forces”.—[Official Report, 10/3/14; cols. 1577-78.]
That really did not address the point that we were making and we did not find it satisfactory.
At the time, the Minister said that he would write to me on that point. I do not appear to have had a letter by way of response. It is possible that I have missed it in the avalanche of letters that we have had on the issue. The noble Lord has been very good at responding and at having meetings, but I do not seem to have had that letter. Therefore, I have tabled this amendment to ask whether the Minister has given any further consideration to the points that we have made in relation to the three-month respite period. It would give a person the opportunity to make arrangements and to deal with their problems in a dignified and responsible manner rather than face a rushed deportation or remain in a very difficult relationship. It is a commonsense amendment to tidy up something that is currently a bit messy and unsatisfactory. I beg to move.
Baroness Hamwee (LD)
My Lords, I, too, found the passage that the noble Baroness has just quoted and I realised that there was no reference in it to any exercise of discretion. There is a reflection period of 45 days for victims of human trafficking—at any rate, for those who go through the national referral mechanism. I do not think that that is long enough but that is another matter. I was glad to see that a 90-day period is suggested here. The Government, rightly, recognise problems of domestic violence, but can the Minister tell your Lordships whether there is any scope for exploring some sort of discretion to enable women—as it mostly would be, many of them women with children—to have a period in which to recover? They will not do that in 90 days, although I would not argue for more when we are exploring this, but they need a period in which to consider where next to try to take their lives and, quite often, their children. That would be the humane and proper thing for a civilised society to do. This is not suggesting that, having suffered domestic violence, there is some sort of instant entry to indefinite leave. It is just a temporary pause: an opportunity to consider what to do and where to go next.
Baroness Lister of Burtersett
On the principle that a stopped clock is right twice a day, I will speak again so that the annunciator is right. I supported this amendment in Committee and want to support it again. In fact, it is very timely because the UN special rapporteur on violence against women, its causes and consequences is currently on a mission in the UK and gives oral evidence to the Joint Committee on Human Rights tomorrow. In her preliminary aide memoire, she refers to four particular issues of interest. One is violence in the family and another is what she calls violence in the transnational sphere—that is, violence encountered by women facing new vulnerabilities as a result of increased transnational processes, such as immigrant women, asylum seekers and refugees. Women in that group are very vulnerable if they are in a situation of domestic violence. To their credit, the Government have taken domestic violence very seriously. I hope that we can have a slightly more positive response to the amendment than we did in Committee.
The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con)
My Lords, first I must offer the noble Baroness, Lady Smith, an apology because I do not think I wrote to her on this issue. She has not missed the letter; I missed writing to her. I am sorry about that. I will make sure that I write to her after this debate because there are extensive arguments. I want to keep the argument fairly focused for this evening.
I will start with a generality. The noble Baroness, Lady Lister, was kind to say that the Government take this issue seriously. We do indeed. Only last Thursday, I was able to respond to a supplementary question from the noble Baroness, Lady Howarth of Breckland, about a report on the way that police forces deal with domestic violence. I said that the Home Secretary is committed to tackling this scourge. She has made it clear that she expects speedy action to implement the recommendations of that report.
Having said that, it does not necessarily mean that individuals who have been the victims of domestic violence should expect to be able to remain in the UK where their migration status would not otherwise permit them to do so. While I run the risk of repeating myself from last time and being quoted back yet again, as we have discussed previously there is provision in the Immigration Rules to grant indefinite leave to remain to victims of domestic violence who came to the UK intending to make a permanent life here as the partner of someone who is already a permanent resident or who, in the case of the partner of a member of Her Majesty’s forces, is prevented from applying for permanent residence during the period of service. That just reiterates the position of that particular group of people.
However, the position is different for individuals who are in the UK because of a relationship with someone who does not have the right of permanent residence. Those individuals should not have any expectation of remaining in the UK outside that relationship, regardless of the reasons for that relationship breaking down. To grant leave to an individual who is in the UK as someone’s partner but who is not settled here on a basis other than the ongoing partnership would suggest that his or her right to be in the UK was independent of that partnership, which is not the position. It would not be helpful to encourage anyone to think otherwise or, by the grant of a specific period of leave, to give false hope that they might be able to stay. However, we take a pragmatic and practical view in these cases. If a migrant no longer meets the requirements of their leave because a relationship with a spouse or partner has broken down, discretion may be used so that, rather than curtailing leave with immediate effect, the Secretary of State may curtail that leave—if I may use the word “normally”—normally to a period of 60 days. This would allow the migrant time to make arrangements to depart the UK voluntarily without being here illegally, or to submit an application to remain in the UK on another basis. That is a relevant consideration, which I hope noble Lords will understand.
The Government consider that it is fair, reasonable and proportionate to distinguish between those whose partner is here permanently and those whose partner is here temporarily and may never become a permanent resident. I acknowledge that this is a difficult area but I think that noble Lords will understand the difficulties of extending rights in this area. I consider the position that I have outlined is the right one. As I have said, I certainly will write to the noble Baroness, with a copy to noble Lords, and will place a copy in the Library. I appreciate that this is an important issue to get right. None of what I have said dilutes our determination that we should pursue the issue of domestic violence, which ruins lives and is never acceptable. I hope that the noble Baroness understands our position and will withdraw her amendment.
Baroness Smith of Basildon
My Lords, I am grateful to the noble Lord for that response, although I am not sure that I understand his position. I wish that I had received a letter. With the benefit of a letter addressing the points that he has made, perhaps my amendment and the points raised in the debate would have been different. He seemed to be saying that no action should be taken. He referred to granting indefinite leave to remain, which is not what we are suggesting. All we are suggesting is a breathing space for someone to make arrangements. However, he went on to imply that perhaps a breathing space may be granted, although I am not sure of the circumstances in which that would be granted.
At one point I thought that the Minister’s reply seemed rather insensitive and unhelpful, but then it seemed that he was being more helpful. I am really not clear about the process. I would be grateful if the Minister would write to me and I could reflect on that. I know that it would not be usual to bring this back at Third Reading but, given that I did not have the response in order to address the points on Report that I would have addressed otherwise, I hope that he will be understanding and that we can discuss this issue further. At this stage, I beg leave to withdraw the amendment but I would like to return to the issue with the noble Lord, given his somewhat contradictory answer.
Lord Taylor of Holbeach
Of course, I am very happy to talk to the noble Baroness about the detail of this. I mentioned that the Secretary of State considers these cases and normally there is a 60-day period to get the individual’s status sorted out. We appreciate that this is not easy for individuals to cope with. I think that 90 days was mentioned by the noble Baroness, Lady Lister, and also by the noble Baroness, Lady Smith. But in practice, 60 days is within the Secretary of State’s discretion.
I will write with fuller detail. I hope that we will have a chance to talk about this before we get to Third Reading.