Immigration and Asylum Bill (Seventh sitting)

Siân Berry Excerpts

Tuesday 20th October 2026 Public Bill Committees

[The Chair]

Good morning, everyone. We are now sitting in public and the proceedings are being broadcast. Today, we will continue line-by-line scrutiny of the Bill. Before we begin, I remind Members please to switch electronic devices to silent. Tea and coffee are not allowed during the sittings. The selection for today’s sitting is available in the room and on the parliamentary website. It shows how the clauses, schedules and amendments have been grouped together for debate. Members are reminded to bob and catch my eye if they wish to speak in any part of the debate.

Clause 19

Public interest considerations

[Siân Berry (Brighton Pavilion) (Green)]

I beg to move amendment 61, in clause 19, page 17, line 1, at end insert—

“(3AB) It is in the public interest, and in particular in the interests of the elimination of violence against women and girls, that due regard be given to circumstances arising from a person who seeks to enter or remain in the United Kingdom being a victim of violence against women and girls, including domestic abuse (within the meaning of Part 1 of the Domestic Abuse Act 2021).”

This amendment inserts 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.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 104, in clause 19, page 17, line 1, at end insert—

“(3B) In determining for the purposes of subsection (3A)(c) whether a person is of good character, the court or tribunal must apply the guidance issued by the Secretary of State for the purposes of the good character requirement in paragraph 1(1)(b) of Schedule 1 to the British Nationality Act 1981, as that guidance has effect from time to time.”

This amendment would require the new “good character” consideration to be applied in the same way as the good character requirement for naturalisation as a British citizen.

Amendment 105, in clause 19, page 17, line 3, leave out “should” and insert “must”.

This amendment would require, rather than advise, that no weight is given to private or family life established while a person is in the United Kingdom unlawfully, with leave obtained by deception or in serious breach of their conditions.

Amendment 106, in clause 19, page 17, line 7, leave out “serious”.

This probing amendment would apply the “no weight” rule to private or family life established while a person is in any form of breach of a condition of their leave, not just a ‘serious’ breach.

Clause stand part.

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[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.”

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[Anna Turley]

Forgive me, but I have not addressed these issues yet, so if the hon. Gentleman can be patient for a little longer—I am sure he will have more questions afterwards—I would like to make some progress, if I may.

The clause also introduces character and conduct as a factor in the public interest test. This will require judges to have regard to harmful conduct, including criminality below the deportation threshold and outside the mandatory suitability refusals. This is an important element of tackling abuse and takes us one step towards a fairer system that the public can have confidence in.

The clause further reduces avenues for abuse by requiring that no weight—instead of little weight, as now—should be given to an article 8 claim established when someone is here illegally, or legally but only by deceiving the Home Office, or if they have seriously breached the conditions of their permission to be in the UK. That will enable us to more effectively enforce our immigration rules and prevent people from unfairly benefiting from time spent in the UK in violation of our rules, and will avoid the creation of perverse incentives for people who are here unlawfully to try to deliberately establish article 8 claims.

Although it is right that essential protections for children are retained, it is not right that adults who abuse our immigration system are almost guaranteed to be allowed to stay if they can prove a parental relationship with a child in the UK. Currently, there is no need to carry out a full balancing exercise if there is a child. This is the main source of successful article 8 claims, two thirds of which result in residence rights being granted.

The clause clarifies which factors should be considered when determining whether it is in the public interest to remove the parent of a qualifying child from the UK, and introduces a provision to assess the impact of removing a parent where a child remains in the UK.

I thank the hon. Member for Brighton Pavilion for amendment 61, which sets out a new public interest consideration, under which specific regard would be given to the circumstances of victims of violence against women and girls when assessing whether interference with an individual’s article 8 right is justified. Of course, we absolutely recognise and take seriously the importance of tackling violence against women and girls, and the devastating impact that it has on victims. However, the Government do not consider the amendment to be necessary.

Clause 19 already preserves a case-specific assessment in which courts and tribunals can consider all relevant facts and evidence, including experiences of domestic abuse, violence and exploitation, and the safeguarding concerns that the hon. Lady mentioned in her case studies. The holistic article 8 assessment that the clause retains ensures that protections exist for vulnerable people and that support remains available for those who genuinely need it. In addition, existing provisions in the immigration rules, including “Appendix Victim of Domestic Abuse” and the migrant victims of domestic abuse concession, provide specific protections. Those safeguards are there to ensure that victims’ experiences are properly recognised and taken into account.

I thank the hon. Member for Mid Bedfordshire for tabling amendment 104. I understand the intention behind it, but I am afraid that the Government do not consider the amendment to be helpful. I agree that good character is an important consideration in article 8 cases. Including that factor in the public interest test ensures that protections are focused on those who have acted responsibly. That is an important element of creating a fair system that the public have confidence in and that is not open to abuse. The clause establishes that and requires the courts and tribunals to have regard to harmful conduct, including that below the deportation threshold and outside mandatory suitability refusals. We will set out further detail on that in published guidance and the immigration rules.

Let me be clear that the existing guidance, including the guidance mentioned by the hon. Gentleman, will be a useful comparator and will play an important role in shaping this. We do not want to be tied exclusively to the 1981 guidance, but want to develop ours further. Our approach will therefore reflect that already taken in nationality legislation, where good character is not exhaustively defined on the face of the Bill but is addressed through the guidance.

[Siân Berry]

I am very interested in the fact that the Minister has just talked about going further on good character in some guidance. Will that guidance take into account factors that might otherwise weigh against the character of someone making an appeal if they have been exploited or abused? Is that the kind of thing that the Minister is thinking about in terms of deviating from the 1981 guidance?

[Anna Turley]

The guidance will set out very clearly what we will ask the courts and tribunals to have regard to in relation to harmful conduct. We will also make sure, as I have already mentioned, that there is sufficient protection regarding issues around domestic violence. That will be in our immigration rules, and it is in our existing provisions. We will ensure that courts and tribunals consider all relevant facts and evidence. I place this on the record in Committee: we will expect experiences of domestic violence, abuse and exploitation, and safeguarding concerns to be a key part of that.

To go back to amendment 104, our approach will reflect the approach already taken in nationality legislation, so that good character is not exhaustively defined in the Bill, but addressed through guidance. Everything raised by colleagues in Committee will be on the record.

--- Later in debate ---

[Anna Turley]

I am not going to rule that out here in the Committee, but I can come back and clarify that point for the hon. Gentleman. My expectation is that if someone is deported, and they wish to take their child with them, they are perfectly entitled to do so. It is not for the Government to say that the child has to stay in this country, rather than moving with their family. I will not rule that out here in the Committee.

In conclusion, clause 19 tightly defines the public interest test to ensure that individual rights are properly balanced against the public interest in effective immigration control, and to eradicate the abuse that has crept into our system.

[Siân Berry]

Further to the discussion with the Minister about ensuring that victims of abuse and sexual violence are protected, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: 105, in clause 19, page 17, line 3, leave out “should” and insert “must”.—(Blake Stephenson.)

This amendment would require, rather than advise, that no weight is given to private or family life established while a person is in the United Kingdom unlawfully, with leave obtained by deception or in serious breach of their conditions.

Question put, That the amendment be made.

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[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.

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[Ben Goldsborough]

Will the hon. Lady give way?

[Siân Berry]

I am asking the Minister these questions, so it would be marvellous if we could wait to see how she answers them.

Thirdly, does that approach not allow the Home Secretary to unilaterally stack the deck against an appellant in an appeal, on an arbitrary basis? Does that take away from the objective seriousness of the offence that they have committed? Does the approach therefore impermissibly limit the ability of the appellate body to decide an article 8 ECHR claim on its merits, as is required under the Human Rights Act 1998?

[Joe Robertson]

Clause 20 deals with cases involving foreign criminals and others liable to deportation. The issues I have with the clause are broadly twofold. One issue is around the drafting, which has a number of serious deficiencies. That is not about whether the Government are getting it wrong or right on what they are trying to achieve, but about having certainty on what the legislation will do when it comes to people having to make decisions. My second issue is disagreement with what the Government are trying to achieve.

Under proposed new section 117C, which I will try to deal with as precisely as I can,

“(1) Where a person is liable to deportation, the public interest, and in particular the interest in public safety and the prevention of disorder or crime, requires their deportation unless its effect on the person or a member of their family would be disproportionate.”

That deals with the public interest and its definition. Let us put aside the “unless”, which clearly opens an avenue for the court to examine whether the effect on the person or a member of their family would be disproportionate, and deal with that public interest element. Proposed new subsection (1) says that “the public interest...requires” the deportation of those liable to it, which directs the court to define “public interest” as one thing. However, the Bill tries to define what that public interest is in proposed new subsection (2). It sets out “more serious” factors that point towards a greater public interest in a person’s deportation. It does not matter what those factors are, but they are in proposed new subsection (2)(a) to (c).

Why on earth does the court need direction in assessing the extent of the public interest when it is being directed to consider that public interest simply “requires their deportation”? It seems entirely meaningless to start directing the court as to what public interest might mean in terms of giving weighting to the factors in proposed new subsection (2)(a) to (c) when the court is being told to simply deport under the public interest. I fail to see how it has any relevance whatsoever, and it is potentially distracting from what the Government are trying to achieve.

I will now deal with the “unless” element, because that is entirely separate. Proposed new section 117C says that deportation is required

“unless its effect on the person or a member of their family would be disproportionate.”

The court decision makers are given some help on what “disproportionate” would mean, which is entirely sensible. I disagree with some of the elements that the court should consider, but it is sensible to give the decision makers some direction.

I will stick to the drafting of paragraphs (a) to (c) of proposed new section 117C(4). Paragraph (a) says that exceptional circumstances apply where a person

“has been lawfully resident in the United Kingdom for most of their life”.

Given that provisions in relation to children, not just in this Bill but generally in the way we do law in this country, are different from provisions in relation to adults, that provision needs to be clear about whether it means a person has been resident in the United Kingdom for most of their adult life or their entire life from birth. Although it may suggest entire life from birth, I can see a court assuming it means adult life because we deal with children separately. It would therefore be much easier for someone who is, say, aged 24 and has been in the country for only three or four years to say that they have been a resident for most of their life, because provisions for children are separate. That is an avenue that could be exploited through a lack of drafting, unless the Government mean adult life. I think they should mean entire life, and they should be specific about what they mean.

Secondly, paragraph (b) says that exceptional circumstances apply where

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

How on earth is a decision maker or a court supposed to determine whether someone is or is not socially and culturally integrated into the UK? We could have an entire PhD thesis on the extent of somebody’s social and cultural integration. We may all have views on what it means to be socially and culturally integrated. There may be some common themes around our views, but there will be much disagreement about the specifics when trying to make a decision about an individual case.

Of course, the decision makers are not there to do some highly resourced, detailed investigative study into someone’s circumstances. They will basically be relying on assertions. Surely it is open to someone saying, “I’ve lived here for a number of years. I speak English to a degree and I can go about normal daily life without endlessly causing friction or hardship, and I am therefore sufficiently socially and culturally integrated into the UK.” Or is the court supposed to examine the way they dress or eat, who they mix with and how often, the cultural background of the people they mix with or their religious traditions? Not only is it opening a can of worms, but it is quite offensive to have the state investigating someone’s social and cultural integration in order to make a yes or no decision.

According to this provision, a court—the decision maker—is not to make a decision about someone being reasonably well integrated or showing signs of cultural integration; someone is either socially and culturally integrated, or they are not. I just cannot see how the Government can possibly expect a decision maker to open up such an investigation. And that would be only one part of the integration inquiry.

Proposed new subsection (4)(c) then talks about

“very significant obstacles to the person’s integration in the country to which they are proposed to be deported.”

Having run the analysis and come up with a view about an individual’s cultural and social integration into the UK, the decision maker has to run a similar test on their ability to integrate into the country to which they are supposed to be deported—a theoretical test, because it might be somewhere they have not been for some time—where it is even harder to make some sort of value judgment, because it is a country that the decision maker could have absolutely zero experience of living in, and so they will, again, be reliant on assertions.

The test in that case is not even the same as in proposed new subsection 4(b), where the person must be “socially and culturally integrated”; at subsection 4(c), it is the person’s “integration”—there is no qualification of cultural and social integration. In this country, they could be socially and culturally integrated, but not integrated in a wide range of other ways; yet in the country that they are proposed to go to, any integration issues, not just social and cultural ones, could be a “significant” obstacle to integration. I do not understand why the definition is narrower on the question of a person’s integration—albeit far too broad for a court to tackle—for assessing the situation in this country and much wider for the situation elsewhere.

There are serious drafting issues here. We cannot merely just see where it all comes out in the wash, saying Home Office officials are very capable and all that sort of stuff. We have seen the problem with the number of appeals. Some of these provisions will genuinely need the court to tackle the interpretation issues, in the normal way that we do common law in this country, through test cases. These provisions will require an unusual set of test cases, through to the Court of Appeal and the Supreme Court, to get judicial interpretation and assistance for the courts to apply thereafter, but, as we have seen in test cases, it is rarely one case that sets a new environment for the lower courts and decision makers to adhere to, but a series of them.

This is not only going to require an extraordinary amount of time to understand terms that the Government just need to deal with at this stage through the legislation process, but it will take years; any individual case that goes all the way up to the Supreme Court on how the court interpreted “socially and culturally integrated” will take a long time in and of itself—months into years. Where we may have challenging cases that seek to overturn what, for example, the Court of Appeal has said, by using the Supreme Court, we are talking years on years.

The Government are creating massive scope for backlog and uncertainty, and a huge opportunity for the legal profession to run a high volume of case law—it would be genuinely interesting, but would completely undermine the Government’s intention, which is to tackle backlogs, speed up the system and stop the endless need for judicial interpretation. That is what has led us to where we are, which is broader and broader interpretation.