Immigration and Asylum Bill (Seventh sitting) Debate
Full Debate: Read Full DebateBlake Stephenson
Main Page: Blake Stephenson (Conservative - Mid Bedfordshire)Department Debates - View all Blake Stephenson's debates with the Home Office
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Public Bill Committees
Siân Berry
It is a pleasure to see you in the Chair, Dr Murrison. My amendment would introduce a public interest test for survivors of violence against women and girls, domestic abuse and sexual violence into the considerations. I will also speak to the matter of leaving out the clause. I will start with the clause and what it does.
The clause will fundamentally alter the balance that has long existed between article 8 rights and the public interest by restricting the courts’ ability to assess the individual circumstances of each case. Our courts and tribunals carefully balance the right to private and family life against the public interest in an effective immigration system. Our judiciary performs that task every day, helping to deliver justice, uphold the rule of law and guard against abuse. Yet the clause assumes that the balance is being struck wrongly, without the Government having demonstrated that. The main evidence is only a 2022 internal sample of Home Office decisions.
The existing statutory framework already strongly favours the public interest, in particular in deportation cases. While preserving the ability to consider individual circumstances, the clause will replace that with a more prescriptive framework. Here are my views on the main changes in the clause: first, it will require courts to predict whether a person will remain financially independent. That is an inherently speculative exercise, because it fails to consider the uncertainties of ordinary life, including illness, disabilities, caring responsibilities or economic downturns. The effect is likely to discriminate most heavily against disabled people, as well as those with long-term health conditions and caring responsibilities.
Secondly, the clause will discount genuine family life, because of immigration status. Family life formed while a person was here with no leave to remain would be given no weight at all, and family life formed while people’s status was precarious would be given little weight. Precarious migration status covers everyone with anything short of indefinite leave to remain or citizenship—care workers, skilled workers, international students, refugees and partners on the family route.
Under the earned settlement proposals, the qualifying period to become eligible for settlement would be extended to a baseline of 10 years, and in some cases 15 or even 20 years for refugees. Many people will therefore remain on in a precarious position for years, during which the relationships they form and the children they raise would count for little or nothing under the clause. The reality is that family relationships do not cease to exist or be formed just because an immigration status is uncertain.
Strasbourg accepts that precarious status can reduce the weight that is given to family life, but it has not said that it counts for nothing. In an important case, Jeunesse v. the Netherlands, the European Court of Human Rights found a violation—even when the applicant had remained without leave for years—because of the impact on her children. With a “No weight” rule, as in clause 19(4), there will be no space to assess such cases and to retain flexibility. It will weaken protection for children.
Finally, and perhaps most alarmingly, when courts assess a child’s best interests they do not look at one factor in isolation—they examine the full picture: a child’s age, health, education, friendships, cultural identity, family circumstances, personal development and connection to the UK—and the children are not defined by a checklist; yet clause 19 would introduce a closed checklist, under which it would be unreasonable
“to expect a child to leave the United Kingdom if (and only if)”
they would receive no education abroad, face “very significant obstacles” to integrating in the new country, or suffer
“a very significant and long-lasting adverse effect”.
Each is a very high bar. Remarkably, the Government’s impact assessment describes those factors as a “non-exhaustive” list, but subsection (7) uses the phrase “if and (only if)”. It is very clearly a closed list. The Bill therefore goes even further than the Government say they intend, in terms of its effect on children.
I am also concerned that the clause applies to British children too. As drafted, it could result in a British child with a migrant parent either being separated from their parent or having to leave the UK to preserve the family unit. That results in two-tier British citizenship. The Government’s own impact assessment lists family separation among the consequences of these reforms, and says—with little humanity—that the new test will allow decision makers
“to consider whether parents can maintain their relationship with a child from outside the UK”
or whether a British child can
“successfully adapt to life abroad”.
The existing framework is not perfect, but it already places substantial weight on the public interest and has safeguards allowing courts to consider the facts of each case. Clause 19 risks upsetting that balance. At its heart, the issue here is a simple one: do we trust our courts to weigh the facts before them, or do we seek to predetermine the outcome through statutory presumptions? I believe that the existing approach better serves both justice and the rule of law, and for that reason clause 19 should not stand part of the Bill.
Amendment 61 would reduce the harm of this clause, if it remains, by inserting a new public interest consideration into section 117B of the Nationality, Immigration and Asylum Act 2002, requiring a court or tribunal to take into consideration the effects of violence against women and girls when deciding whether an interference with a person’s article 8 rights is justified. In my view, without the amendment the Bill will remove or weaken application grounds or causes of appeal relied on by many women living in abusive or exploitative conditions, making them even more vulnerable. That may leave victim-survivors at risk of being refused leave to stay, removed or deported for factors that are a direct consequence of the abuse to which they have been subjected.
To bring that point home, I will provide some examples from organisations that are currently supporting such women. My first example shows how the stricter public interest considerations risk undermining evidence for financial dependency and contact with the criminal justice system being usual results of an experience of violence against women and girls. Julianne was living in another country when she began her relationship with a British man. While visiting him in the UK, she became pregnant with his child and he encouraged her to stay, promising to support her and secure her immigration status. Trusting those assurances, Julianne stayed and became an overstayer. Once her status became insecure, her partner’s behaviour changed dramatically. He subjected her to domestic abuse, isolated her from friends and family overseas, and exploited the fact that she had no support network in the UK. The abuse escalated after the birth of their child.
Julianne eventually fled with her child after a violent assault. She sought medical treatment, reported the abuse to the police and received emergency support from the local authority. Traumatised and destitute, Julianne was left to navigate a complex immigration system alone, as she had been unable to secure legally aided advice and could not afford to pay for a solicitor. She lives with the constant fear of removal. I have changed Julianne’s name.
Julianne had a pathway to regularisation as the parent of a British child; however, if clause 19 becomes law the barriers to regularising her immigration status would be raised significantly, potentially preventing her from qualifying to remain in the UK as the parent of a British child. Re-emphasising the weight of financial independence without reliance on state support and public services will create pressure on victim-survivors like Julianne to stay in abusive and exploitative situations instead of leaving and claiming support, as she did.
Women who have been subject to economic and immigration abuse will be penalised due to their lack of financial independence. The public interest considerations would weigh heavily against Julianne because she accessed support from the local authority while protecting herself and her children from domestic abuse, and because no weight would be given to her family life, as it was established when she overstayed. Without amendment 61, there would be no discretion to consider the role her abuser played in causing her to overstay.
In respect of the redefinition of family, I have a further example of where limiting family life to core cohabiting family and replacing a judicial assessment with a checklist will ignore nuances and external factors forcing a family not to cohabit, such as coercive and controlling behaviour. More broadly, women who are convicted of criminal offences would also be put at increased risk of deportation, as a high evidential standard is needed to prove a disproportionate impact on them or a family member.
That includes women who are coerced or pressured into criminal activity—those driven to engaging with the criminal justice system due to unmet needs, such as being unable to afford food or having unaddressed mental health problems, and those who retaliated against the person abusing or exploiting them, or who had a counter-allegation made against them falsely. All those women are vulnerable and deserving of protection and support, not the further punishment of possible deportation.
My second case study is Blanca. Blanca came to the UK with a visa to work, and while here, she married a British man and had a baby. He had a good job, so they agreed she would stop working, and they then had two more children together. Over time, he became more controlling. Although the children’s benefits were registered in her name, he controlled the payments and did not give her access to the money.
As Blanca did not have her own income, he gave her money for the family’s food, but he would demand that she provide receipts and the exact change. If she bought anything he considered unnecessary, he would be angry and make her return it. That included sanitary products, which Blanca found humiliating and confusing. He also became verbally and later physically abusive towards Blanca, and she became more and more scared of him.
One day, when she was in the supermarket, her period started. She did not know what to do, and she was scared of her husband seeing that she had bought something he thought was unnecessary. She stole a box of sanitary pads, but on her way out of the shop, she was stopped by security who reported her to the police. She was charged and later convicted of theft.
If part 2 of the Bill were fully implemented, Blanca’s conviction would put her at high risk of deportation. No consideration would be given to the abuse that she experienced, which pushed her to commit the crime, nor would it be given to her vulnerability and trauma. In addition, as she did not have lawful status for much of the time she was in the UK, her private and family life may be deemed to hold no weight—or, at best, little weight—if it were held to have been established when she arrived with precarious status.
The Committee can see that clause 19 has all these knock-on effects into further parts of the Bill, and that this additional public interest consideration is necessary. I hope the Committee will discuss and support amendment 61, if clause 19 is to remain in the Bill. I am happy for this to be a probing amendment, if the Government will consider these risks and make their own similar changes to the Bill later.
Blake Stephenson (Mid Bedfordshire) (Con)
It is a pleasure to serve with you in the Chair, Dr Murrison. As we discussed in the last sitting, clause 18 asks who counts as family, but clause 19 asks what weight that family should carry against the public interest. The clause goes to the heart of public concern, as it considers people who build a life here, while they have no right to be here, only to rely on that recently constructed life as a reason to stay in the UK indefinitely.
I will speak to amendments 104 to 106, tabled by my hon. Friend the Member for Stockton West and I, as well as amendment 61, tabled by the hon. Member for Brighton Pavilion, and clause 19. The Opposition support the broad direction of travel in which the Government are going with the clause; however, to our reading, much of it is unfortunately drafted in a way that means it will be all too easy for the courts to set aside. Furthermore, the evidence behind the clause has not yet been published. I will take the Committee through both aspects.
First, clause 19 amends section 117B of the 2002 Act, which deals with the public interest considerations that apply in every article 8 case. Subsection (2) replaces the requirement to be financially independent with a three-part, forward-looking test, which is that a person must be, and is
“likely to remain, financially independent…able to house themselves…without reliance on state support”
and is not
“reliant on public services, in particular health or social care services, in the long-term”.
Subsection (3) adds a new public interest in people who have not been convicted of an offence anywhere, have co-operated with the immigration authorities and
“are otherwise of good character.”
Subsection (4) changes “little weight” to “no weight” being given to a
“private or family life established by a person”
who is here without leave, or with leave obtained by deception, or who is in “serious breach” of its conditions. Subsection (5) extends “little weight” for precarious status to family life as well as private life. Subsections (6) and (7) tighten the rule on parents with qualifying children. There must now be
“a very significant and long-lasting adverse effect”
on a child who stays, and it is unreasonable
“to expect a child to leave the United Kingdom if (and only if)”
one of three conditions is met.
On the evidence base, the Home Office told the Committee that 71% of those newly granted article 8 leave
“had entered illegally or overstayed”––[Official Report, Immigration and Asylum Public Bill Committee, 15 September 2026; c. 73, Q130.]
and that grants made in 2025 cost the taxpayer an incredible £4.9 billion. If those figures are correct, the case for this clause is overwhelming and undeniable; however, the Committee has not seen the evidence behind them. If the Government want the House to legislate on the strength of the 71% and the £4.9 billion cost figures, it is our view that they should publish the sample, definitions and method before Report.
On financial independence, subsection (2) is, in our view, right in principle. The Library records that the Home Office’s aim is
“increased refusals or unsuccessful appeals in cases where applicants impose avoidable burdens on public resources”.
I certainly think the public will agree, but the test is a prediction about the future, and the Bill says nothing about how it is to be made. In its evidence, the Law Society told us:
“No detail has been provided on how the elements of this test are to be determined”.
Over what period will future reliance be assessed? What evidence will be required, and will guidance be published before commencement?
There is a further difficulty, which is whether this subsection will be able to survive the courts. Again, according to the Law Society,
“the Government’s human rights memorandum at paragraph 27”
acknowledges that the new criteria are
“likely to result in discriminatory outcomes for…older or disabled people”.
The Bar Council makes the same point. A test that the Government themselves expect to operate unequally is one that will in all likelihood be litigated under the Equality Act 2010 and perhaps article 14—and one that the courts may well soften as a result. I ask the Minister: what mitigation does the Government propose to avoid that?
On good character and amendment 104, subsection (3) sets out a new public interest in people who have not offended, have co-operated with the authorities and are “of good character”. Again, we support the direction of travel, but “good character” is not defined in the Bill or the explanatory notes, which seems an extraordinary gap, though I recognise that it is quite difficult to define it in the Bill. This is another example of the Government potentially setting themselves up for failure in the Bill. The Bar Council says that it hands the Home Office
“a general evaluative test that is highly subjective in scope”.
The Law Society and the Immigration Law Practitioners’ Association made similar points in their evidence. An undefined test is an invitation to future litigation.
There is a ready answer, though, to which I shall point the Committee: the good character guidance used in naturalisation decisions, which is detailed and demanding, with periods that taper according to the length of sentence. Will the Minister confirm whether the Government will apply that guidance here? Amendment 104 would add that to the Bill. What will count as a failure to co-operate with immigration processes—absconding, the destruction of documents, ignoring a claim notice under clause 11, et cetera? It would be helpful to understand what the Government’s understanding is.
On amendments 105 and 106, the explanatory notes accept that courts can depart from the weightings under section 117A(2) of the 2002 Act. The Law Society says that the change
“appears to be an attempt to bar a full proportionality assessment”,
and sets up a conflict with the duty on the Home Secretary and the courts to
“act compatibly with Convention rights under section 6 of the Human Rights Act.”
Blake Stephenson
I want to press that point. If the Minister’s position is that she wants the starting point for tribunals to be “no weight”, then what is the harm in adding “must” to make it absolutely clear that the House expects tribunals to apply “no weight”? But then she says that she wants tribunals to have flexibility, so which one is it?
I appreciate the point that the hon. Gentleman is trying to make, but we absolutely cannot bind the courts’ hands in this situation. The reality is that they have to be flexible. We can set a very clear steer—that is on the record, in the Bill and in legislation—but it is important that we allow the courts flexibility, because their role is to establish the facts, case by case.
As my hon. Friend rightly flags, “no weight” is the starting point for the weight that should be given to a person’s private or family life established in the time that they were in the UK without permission. That is a clear definition for the court. Applying the “no weight” rule to all breaches of leave could mean minor or technical breaches leave cases open to challenges of disproportionality.
Amendment 106 is in a similar vein. Although we agree that non-compliance must have consequences, it is appropriate that we distinguish between serious breaches and less significant or technical non-compliance, because we always have to have proportionality. Removing “serious” would considerably widen the provision and could require the same approach to be taken to conduct of very different gravity. The Government’s reforms already substantially strengthen the public interest side of the article 8 balancing exercise. The inclusion of “serious” helps to ensure that the reforms are focused on the cases of greatest concern.
Blake Stephenson
In that case, if “serious” is to remain in the Bill, will the Minister help the Committee to understand what types of scenarios might constitute serious or not serious?
I appreciate the hon. Gentleman’s attempts to define this, but it is important to say that we are keen not to include specific definitions in the Bill, as we are worried that they could result in disproportionate outcomes. Our approach is to be robust, targeted and, crucially, legally sustainable. We do not want to allow ourselves to be open to challenge.
Blake Stephenson
I beg to move amendment 107, in clause 20, page 18, line 13, at end insert—
“(3A) Where a person has been sentenced to a period of imprisonment of at least four years—
(a) the first and second sets of exceptional circumstances do not apply, and
(b) the third set of exceptional circumstances applies only where there are very compelling circumstances over and above those described in subsections (4) and (5).”
This amendment would restore the current rule that a foreign national sentenced to four years or more cannot resist deportation by relying on the long-residence or “unduly harsh” exceptions and must show very compelling circumstances over and above them.
The Chair
With this it will be convenient to discuss the following:
Amendment 108, in clause 20, page 18, line 13, at end insert—
“(3A) The first and second sets of exceptional circumstances do not apply where a person has been convicted of—
(a) a specified offence within the meaning of section 306 of the Sentencing Code, or
(b) an offence listed in Schedule 3 to the Sexual Offences Act 2003 committed against a person under the age of 18.”
This amendment would prevent foreign nationals convicted of specified violent, sexual or terrorism offences, or sexual offences against children, from resisting deportation on the long-residence or “unduly harsh” family grounds, whatever their sentence.
Amendment 109, in clause 20, page 18, line 29, leave out from “is” to end of line 30 and insert
“over and above that which would arise if the circumstances in subsection (4) or (5) applied.”
This amendment would require very compelling circumstances going beyond the long-residence and family exceptions, rather than circumstances merely “at least as strong as” them, restoring the formulation in the current section 117C(6).
Amendment 110, in clause 20, page 18, line 34, after “3(5)(a)” insert “, (5)(b)”.
This probing amendment would include family members of a deportee within the definition of a person liable to deportation for the purposes of Part 5A.
Amendment 111, in clause 20, page 18, line 36, leave out “(2) to (4)” and insert “(2) and (3)”.
This amendment is related to Amendment 107. It would retain section 117D(4) of the Nationality, Immigration and Asylum Act 2002, which sets out how a period of imprisonment is calculated for the purposes of Part 5A of that Act.
Clause stand part.
New clause 45—Deportation of foreign offenders—
“(1) The UK Borders Act 2007 is amended as follows.
(2) In section 32, for subsections (1) to (3) substitute—
‘(1) In this section
“foreign criminal” means a person—
(a) who is not a British or Irish citizen, and
(b) who is—
(i) convicted in the United Kingdom of an offence, or
(ii) charged with an offence under section 24 of the Immigration Act 1971.’
(3) In section 33, omit subsections (1)(b), (2), (3) and (6A).
(4) In section 24 of the Immigration Act 1971, omit all instances of the word ‘knowingly’.”
This new clause would require the Secretary of State to make a deportation order in respect of a foreign national who is convicted of an offence or who is charged with an offence under section 24 of the Immigration Act 1971.
New clause 66—Automatic deportation: forced-marriage offences—
“(1) Section 32 of the UK Borders Act 2007 is amended as follows.
(2) In subsection (1)(c), for ‘Condition 1 or 2’ substitute ‘Condition 1, 2 or 3’.
(3) After subsection (3) insert—
‘(3A) Condition 3 is that the person has been convicted of an offence under section 121 of the Anti-social Behaviour, Crime and Policing Act 2014 (offence of forced marriage: England and Wales).’”
This new clause would amend section 32 of the UK Borders Act to create a separate basis for automatic deportation where a person is convicted in the United Kingdom of an offence under section 121 of the Anti-social Behaviour, Crime and Policing Act 2014, concerning forced marriage.
New clause 67—Particularly serious crime: National Security Act 2023 offences—
“(1) Section 72 of the Nationality, Immigration and Asylum Act 2002 is amended as follows.
(2) After (5ZB) insert—
‘(6) A person is presumed to have been convicted by a final judgment of a particularly serious crime if—
(a) the person is convicted in the United Kingdom of an offence listed in the National Security Act 2023; and
(b) the person is not, by virtue of the conviction, a person falling within subsection (2).’”
This new clause would make any conviction of an offence under the National Security Act 2023 an automatic deportation offence, as is currently the case with offences under Schedule 3 of the Sexual Offences Act 2003.
Blake Stephenson
On Thursday 15 October, the Government were kind enough to accept Opposition amendment 96 to clause 17; I hope the Minister will look at these amendments with the same open mind, because of all the clauses in part 2, this is the one that the public care the most deeply about. People expect that foreign nationals who commit serious crimes in this country will be deported, and they do not understand why family life—often family life formed while the offender was here—so frequently stands in the way. It is frankly unacceptable.
Our reasoned amendment on Second Reading made the point that this Bill
“does not ensure all foreign criminals and illegal immigrants will be deported”.—[Official Report, 13 July 2026; Vol. 789, c. 679.].
Clause 20 is where that concern is tested. My case is that, although the clause contains real improvements, which we support, it also makes the position easier for the most serious offenders. Either way, it leaves the final word where it is today: with the judge’s assessment of proportionality.
The clause does four things. First, it extends the deportation rules in section 117C of the 2002 Act from foreign criminals to everyone liable to deportation, including those deported because it is conducive to the public good. Secondly, it replaces the current structure of a single rule, that deportation is required unless its effect on the person or their family would be disproportionate. Thirdly, it replaces the sentence length threshold of 12 months and four years with a sliding scale: the more serious the offending and its impact on society, the greater the public interest in deportation. Fourthly, it provides that deportation will be disproportionate if, and only if, one of three sets of exceptional circumstances applies: long residence and integration, an unduly harsh effect on a partner or child, or other very compelling circumstances, and the interference cannot be justified by the public interest.
I turn first to what the clause gets right, because I want to be fair to the Government in this Committee. Extending the rules to all deportation cases is a genuine tightening, and for that reason the Opposition support it. There is a reasonable legal argument that the new structure restores the balance test that the courts took away. Dr Chris Rowe of Swansea University argues that after the Supreme Court’s decision in KO (Nigeria) v. Secretary of State for the Home Department, the unduly harsh exception came to operate as an unqualified right, which we heard about in earlier Committee sittings. If the effect on the family was harsh enough, the strength of the public interest did not matter. He argued that clause 20(3) would be effective in restoring a balance against the public interest. If that is correct, it is a real improvement for so-called medium offenders.
Once again, however, I cannot help but notice what kind of improvement this is. On Dr Rowe’s own analysis, clause 20 brings domestic law back to what the Strasbourg case law requires, but does not go beyond it, and for the most serious offenders, the clause appears to move in the wrong direction. Under the current law, someone sentenced to four years or more cannot rely on the long residence or unduly harsh exceptions on their own; they must show very compelling circumstances over and above them. Clause 20 removes the sentence thresholds altogether. Justice, which, I should say, supports the change for very different reasons, describes the effect precisely in its evidence, stating that the Bill
“flattens out the application of the exceptions, so that all three apply, regardless of the length of a person’s sentence.”
The House of Commons Library briefing says that it is “not clear” how the new rules are stricter for people sentenced to more than four years.. Does the Minister accept that under clause 20, the most serious offenders gain access to exceptions one and two? If so, why? What reasons could the Government have for loosening the rules for the worst-offending foreign criminals? Presumably, the Government are trying to achieve the opposite.
Blake Stephenson
I thank the hon. Gentleman for supporting the general thrust of what we are trying to achieve with the amendments, and I accept his point. By having a narrow list, we may constrain future opportunities and changes, and we need to be flexible. However, it is important that the Committee expresses its view that these crimes are abhorrent. Although it is a narrow list, this place can of course legislate further in the future, as life changes. I thank the hon. Gentleman for his general support and I understand his point, but given the gravity of these crimes, it is important that this Committee is very clear that they are totally unacceptable.
I think there is broad agreement on the principle behind the hon. Gentleman’s amendments, but is he seriously suggesting that, for every additional crime that we decide needs to be added to his inexhaustible list, we must come back to the House and somebody has to sign off on it?
Blake Stephenson
We are here to legislate, so I do not think it is unreasonable for us to be defining what is right and wrong. Perhaps we can leave it to the Minister to respond.
The unfortunate reality is that, with this Bill, the Government are falling into the very same trap that the previous Government fell into. The legislation may be designed to work around the constraints imposed by the ECHR, but it will ultimately run up against the very same problems. The courts will default to the positions that they have consistently taken, enabling individuals with no right to remain in this country to delay or prevent their removal. Indeed, when the Bill fails to enable the Government to address the extensive range of grounds for resisting removal that flow from the ECHR, will the Minister finally accept that—as we have long argued—the real problem lies outside the drafting of the legislation, however robust it might be, and however robust the Government intend it to be today?
As I have already noted, the Minister described discussions about leaving the ECHR last week as unnecessary and counterproductive. If she genuinely believes that deterrence must sit at the heart of the response to these challenges, I struggle to see how removing the ability of foreign criminals to rely on the convention to delay or prevent their removal could reasonably be considered as either unnecessary or counterproductive.
The Opposition will not oppose clause 20. Extending these rules to all deportation cases and restoring the balance against the public interest are steps in the right direction that we support. However, the clause removes the clear lines that protected the public from the most serious offenders, and it gives these criminals access to exceptions that cannot be used today. We will seek to press amendments 107 and 108 to a vote, and I would be grateful for the Minister’s answers to the various questions I have asked.
Siân Berry
I will speak very briefly on clause 20, specifically subsection (4). At present, it will expand the scope of section 117D of the Nationality, Immigration and Asylum Act 2002 so that it automatically applies to everyone whose deportation the Home Secretary has decided is conducive to the public good, regardless of the objective seriousness of their offence, under the Immigration Act 1971 and its use of the word “deems”, which I think is very important.
I hope the Minister can answer three questions on the clause. First, do the proportionality qualification and the exceptions in the clause offer any protection for those whose criminality is as a result of exploitation or abuse, particularly those who face immigration-related domestic abuse and have been convicted of crimes related to that? On that theme, the new clauses tabled by the official Opposition would clarify the word “serious” so that some offences would be considered serious automatically. I see the point they are trying to make, but if we made that automatic, it would not be possible for those who are exploited and drawn into criminality to face a proportionate, human-rights-based public interest test. I do not support those new clauses, nor do I support amendments 108 to 111.