The Secretary of State for the Home Department (Mrs Theresa May)
The Government are committed to reviewing and reforming—I must interrupt myself to apologise, Mr Speaker, as I should first move the motion.
I beg to move,
That this House supports the Government in recognising that the right to respect for family or private life in Article 8 of the European Convention on Human Rights is a qualified right and agrees that the conditions for migrants to enter or remain in the UK on the basis of their family or private life should be those contained in the Immigration Rules.
It might have been unfortunate if I had forgotten to do that formal bit, Mr Speaker.
Mr Speaker
The Home Secretary can rest assured that I would have reminded her.
Mrs May
I know you are assiduous in your duties, Mr Speaker, and I recognise that you would, indeed, have reminded me—and with courtesy, I am sure.
The Government are committed to reviewing and reforming all the main routes of immigration to the UK. As a result, we anticipate net migration will fall from the hundreds of thousands to the tens of thousands. Last week I laid new immigration rules for family immigration. These new rules will ensure that those who come here can do so only on the basis of a genuine relationship, that once here they can pay their way, and that they can integrate properly into British society. So we will increase the minimum probationary period for new spouses and partners to five years; we will stop dependent relatives becoming an unnecessary burden on the national health service; and we will introduce new tests to ensure family migrants can speak English, understand our history and respect our values.
But central to making those new rules work effectively is for this House to set out its view on how the right to family and private life in article 8 of the European convention on human rights should interact with our immigration policy. The ECHR makes it absolutely clear that article 8 is not an absolute right. Article 8(1) of the convention provides for the right to respect for private and family life, but that is qualified by article 8(2), which allows the state to interfere in the exercise of that right.
In an immigration context, the convention allows interference in the right to respect for family or private life on grounds of public safety, such as the prevention of crime, or to protect the UK’s economic well-being, including by controlling the numbers of immigrants allowed to enter or remain in the country. That means the Government can interfere with the exercise of article 8 rights, in full compliance with the ECHR, and in full compliance with the law, where it is necessary and proportionate to protect the public from foreign criminals or to safeguard our economic well-being.
The problem is that Parliament has never before been given the opportunity to set out how it believes it should be possible to interfere with article 8 rights in practice. That meant the courts were left to decide the proportionality of interference with article 8 rights themselves, in each and every individual case, and without the benefit of the views of Parliament.
We are putting that situation right. We are letting Parliament do its job by making public policy, and we are letting the courts do their job by interpreting the law, with regard to the clear view of Parliament of where the public interest lies.
Robert Halfon (Harlow) (Con)
Does my right hon. Friend agree that the original ECHR is a very noble document, but that the problem is the misinterpretation of it by modern judges? Does she also agree that the actions the Government are taking will give these judges the clear message that they should go back to the original principles of the convention rather than adhere to political correctness?
Mrs May
I believe that what we are doing today and the motion we are asking this House to pass—I hope it will pass with support from all parts of the House—will send a clear message about what we believe the article 8 rights mean in terms of where the public interest lies. That is important because, as I say, Parliament has not been able to do that so far. But of course we uphold the principles of human rights, and this is in no way contrary to those principles or to the convention because, as I have said, the convention itself qualifies this particular right.
Jeremy Corbyn (Islington North) (Lab)
As nobody has a dispute about whether article 8 is an absolute—it has always been subject to definition by national courts—why on earth are we debating this today? Is this not just part of the Home Secretary’s general attack on the whole principle of the European Court of Human Rights and the European convention on human rights, which her Back Benchers frequently raise at every possible opportunity?
Mrs May
I am a little surprised that the hon. Gentleman stands up to question why Parliament is debating something, as he has usually been keen for Parliament to debate more than it does. The point of this is that clearly—I shall deal with this later—there has been a request from the judiciary that Parliament should make its views clear on this issue, so that they can take that into account when examining cases. It is entirely reasonable that Parliament should give its voice on this matter.
Mr James Clappison (Hertsmere) (Con)
I warmly welcome the Home Secretary’s approach. On this question of Parliament’s view, is it not important that when the courts are striking a balance between family rights and the article concerned, and “serious offences” by foreign offenders, it is right that they should know what Parliament regards as “serious offences” for these purposes?
Mr David Ruffley (Bury St Edmunds) (Con)
Will my right hon. Friend deal with something that is in the minds of all Government Members? A robust measure such as this, put in front of the House, could have been debated at any time in the 13 years before the 2010 election.
Pete Wishart (Perth and North Perthshire) (SNP)
I am looking at a motion that says nothing about Parliament’s view on article 8; all it seems to be is a restatement of the bleeding obvious. We all know that article 8 is a qualified right, so why are we here debating a nothing motion?
Mrs May
I suggest that the hon. Gentleman read right to the end of the motion, as he will then see that we do indeed record that we support the
“right to respect for family…life in Article 8”.
We say that it is “a qualified right” and we agree that
“the conditions for migrants to enter or remain in the UK on the basis of their family or private life should be those contained in the Immigration Rules.”
That is the second crucial part of the motion. Opposition Members are arguing that somehow Parliament should not debate an issue that is of considerable concern to members of the public. The public do not want to see foreign criminals whom they think should be deported, and whom the Government think should be deported, being able to stay in the UK because they are able to claim a right under article 8. Parliament has the opportunity today to set out its view on this clearly.
Mr Jack Straw (Blackburn) (Lab)
May I, in fully endorsing the Home Secretary’s approach and this motion, ask her to comment on the following? The previous Government, including through my right hon. Friend the Member for Kingston upon Hull West and Hessle (Alan Johnson), did make great efforts to get the courts to change their approach, as they did in the Amy Houston appeal—I have details of the grounds of appeal here with me—but it was only when the courts found themselves trapped by their own precedent that this became necessary. I therefore endorse this approach, but it is not for the want of trying an alternative route pursued by the previous Government.
Mrs May
The right hon. Gentleman makes the valid point that this has been an issue for some time. I think it would have been possible for the previous Government to have done what we are doing today and bring a motion before Parliament, but we have done it and we are giving people that opportunity.
Mrs May
I shall make a little progress, if I may, because I have taken a number of interventions.
With the changes that I am making, there will generally be no need for a separate assessment of article 8 beyond the requirements set out in the immigration rules. Compliance with the immigration rules will mean compliance with article 8, other than in truly exceptional circumstances. So, a foreign criminal who does not meet the criteria set out in the rules will be deported and they will not have a second bite at the cherry via article 8. Similarly, a migrant seeking to come to the UK to join a partner must meet the criteria set out in the rules or a visa will be refused and there will be no separate article 8 claim. The immigration rules will no longer be a mere starting point, with leave granted outside the rules or appeals allowed under article 8 for those who do not meet them. The rules will instead take into account article 8, relevant case law and appropriate evidence and they will be proposed by the Executive and approved by the legislature.
Of course, the courts have a clear constitutional role in reviewing the proportionality of measures passed by Parliament, but now the focus of the courts should be on considering the proportionality of the rules rather than the proportionality of every individual application determined in accordance with the rules. Where the courts consider individual deportation decisions, it should now be with consideration of Parliament’s public policy intent firmly in mind.
Some have suggested that Parliament cannot set out how article 8 should be qualified because we are bound by the European convention on human rights. They evidently do not understand that article 8 is a right that is qualified by the convention itself. Of course, judges will continue to consider each case on its individual merits, but it is the courts themselves that have said that Parliament needs to make its views clear. In a case in 2007, the House of Lords said that a statement from Parliament was needed on where the public interest lies in the operation of article 8 in immigration cases. The Court of Appeal, last year and this year, has indicated that greater weight is to be given to the public interest when that has been endorsed by Parliament. Today’s motion provides the courts with the statement and the endorsement from Parliament that they have said is needed. The courts should then give that statement from the elected legislature the weight that it deserves.
John McDonnell
Will the right hon. Lady clarify whether we are legislating today? Are we passing into law the rules that she published less than a week ago?
Mrs May
The motion recognises the qualification of article 8 and invites the House to agree that it is set out in the immigration rules. The immigration rules themselves have been laid before Parliament—[Interruption.] I am very happy to read the motion again. It states that the House
“agrees that the conditions for migrants to enter or remain in the UK on the basis of their family or private life should be those contained in the Immigration Rules.”
Mr Cash
I am much encouraged by the line the Home Secretary is taking on all this. Over and over again, as she knows, I have raised the question of the interpretation by the courts of matters relating not only to the European convention but to European Union law. Is she taking the opportunity, by one means or another, to have discussions with those in the superior hierarchy of the judiciary? To bolster the assumptions that lie behind what she is saying in defence of the sovereignty of this Parliament, does she want to put the words “notwithstanding the Human Rights Act 1998” in front of the legislation so that the courts are under no misapprehension about what they are to do?
Mrs May
I think my answer to my hon. Friend will be shorter than his question. The motion makes it absolutely clear what we are asking people to do today and I am certain that the judiciary will take into account the view of Parliament. Indeed, as I have said, members of the judiciary have suggested that it would be helpful to have the view of Parliament.
Since the Human Rights Act was implemented in 2000, it has become clear that the existing immigration rules do not properly set out how article 8 should be qualified in real cases. As a result, foreign criminals and those who failed to meet the requirements of the immigration rules and who should not be allowed to come to or stay in the UK have increasingly been able to challenge their decisions in the courts on the grounds of a breach of article 8. So, for those who do not meet the requirements of the rules, grants of discretionary leave outside the rules on article 8 grounds have risen steadily to the point that in 2010 the UK Border Agency granted discretionary leave on the basis of article 8 in around 9,500 immigration cases. That means that in 9,500 cases, applicants could not meet the requirements of the immigration rules but were allowed to stay in the UK none the less. In addition, reflecting established policy on dealing with such cases, they were automatically granted full and immediate access to the benefits system. Perversely, that placed them in a better position than applicants who had met the immigration rules and were denied such access while they served a two-year probationary period.
Mr David Burrowes (Enfield, Southgate) (Con)
A key criticism regarding the use of article 8 is how it has appeared to give greater protection to convicted foreign criminals facing deportation than to British citizens facing extradition. Can the Home Secretary reassure my constituent Gary McKinnon and others like him facing issues of mental illness and autism—I do not want to trespass on to that particular case—that the principle of this motion will not affect genuine article 8 applications relating to extradition?
Mr David Winnick (Walsall North) (Lab)
Following the question put by my hon. Friend the Member for Hayes and Harlington (John McDonnell), I should like some clarification. As has been emphasised several times this afternoon, the immigration rules are being changed, presumably arising from the Home Secretary’s statement last week. Will Parliament have the opportunity to debate those changes?
Mrs May
The immigration rules have been laid and it is open to any Member of the House to pray against them and see whether they can initiate a debate on them in the House. [Interruption.] It is open to anybody to pray against the immigration rules if they wish to debate the detail of them. I will refer to the changes that are being made. What we are saying today is that article 8 should be qualified in line with the immigration rules. I think I have repeated the motion several times.
Pete Wishart
The right hon. Lady is going to have to explain very carefully and clearly exactly what we are debating today. Are we debating and agreeing to the rules that she announced in her statement last week or are we agreeing to restate once again the fact that article 8 is qualified in the terms of the European convention on human rights?
Mrs May
I am tempted to give exactly the same answer to the hon. Gentleman as I gave to him earlier. What we are debating is Parliament’s saying, first, that the House supports the Government in recognising the qualified nature of article 8 and, secondly, that the basis on which article 8 can be qualified is set out in the immigration rules. It is open to hon. Members to pray against the immigration rules if they wish to debate them. [Interruption.] The hon. Member for Perth and North Perthshire (Pete Wishart) asks whether we are agreeing to the immigration rules. What we are agreeing is that article 8 is qualified as set out in the immigration rules. There is then the separate issue—perhaps it would be helpful if I put it this way—of whether the immigration rules are prayed against and whether there is then a debate and a vote on those rules. I hope that I have helped him. There is a very important point at issue here: the courts have said that Parliament needs to give its views about the qualification of article 8 and that is what I am inviting hon. Members to do today.
Mrs May
I am going to make some progress now. I apologise but I have taken several questions from one hon. Member and I want to make some progress.
I was talking about the cases we have had, and I note that there are issues at appeal stage. Last year, 1,888 appeals against deportation were lodged. Of the 409 successful appeals, 185—that is 45%—were allowed on article 8 grounds. Those are the consequences of having had immigration rules that do not properly set out the qualified nature of article 8. The new immigration rules state how the balance should be struck between the public interest and individual rights. They take into account relevant case law, evidence, independent advice and public consultation, and they provide clear instructions for UK Border Agency caseworkers about the approach they must normally take in deciding article 8 claims. They provide the basis for a consistent, fair and transparent decision-making process, and I ask the House to agree that they reflect how family migration should be controlled in the public interest. Once endorsed by the House, the new immigration rules will form a framework that Parliament considers is compatible with article 8, on which the courts can therefore place greater weight as a statement of the public interest.
I turn now to the criteria in the new immigration rules that will be used to judge claims under article 8 in practice. The particular aspects of the new family immigration rules that are relevant are those on criminality, the best interests of a child, the family or private life of non-criminals, and the income threshold.
Perhaps nothing has done more to damage public confidence in the immigration system than when serious foreign criminals have used flimsy article 8 claims to avoid removal from this country. The European convention on human rights is clear—those who commit crimes do not have an unqualified right to respect for private and family life. So we are changing the immigration rules to make clear Parliament’s view that if someone is a serious criminal, if they have not behaved according to the standards we expect in this country, a weak claim to family life is not going to get in the way of their deportation. There is no place in this country for foreign criminals who threaten our safety and security and who undermine our rights and freedoms.
If a foreign criminal has received a custodial sentence of 12 months or more, deportation will normally be proportionate. Even if a criminal has received a shorter sentence, deportation will still normally be proportionate if their offending has caused serious harm or if they are a persistent offender who shows a particular disregard for the law. So where a foreign criminal is sentenced to less than four years, where no children are involved, and where the criminal has been here lawfully for less than 15 years, discounting their time in prison, deportation will normally be proportionate, even if they have a genuine and ongoing relationship with a partner in the UK. Even if the criminal has been here lawfully for 15 years, unless there are insurmountable obstacles to family life with that partner continuing overseas, deportation will still normally be proportionate.
Alok Sharma (Reading West) (Con)
I welcome the motion and I hope it will have the support of all Members across the House, but can my right hon. Friend give me an assurance that in cases involving children, the best interests of the child will be a primary consideration in any decision that is made?
Mrs May
I shall speak in more detail about the best interests of the child, so perhaps the hon. Lady will wait and see if I answer her query in the comments that I make.
On the criminality issue first, the test for private life will also be a stringent one. Deportation will be proportionate unless the foreign criminal has been continuously resident in the UK for at least the past 20 years, excluding any period of imprisonment, and they have no social, cultural or family ties with their country of origin. For offenders aged under 25, deportation will be proportionate unless they have spent at least half their life residing continuously in the UK, excluding any period of imprisonment, and they have no ties with their country of origin. In all other cases, other than in exceptional circumstances, deportation of the foreign criminal will be proportionate.
Mrs May
May I make a little more progress? My hon. Friend may choose to try again when I have finished dealing with this issue.
For the most serious foreign criminals—those sentenced to four or more years in prison—deportation will almost always be proportionate. Article 8 rights should prevent deportation of serious foreign criminals only in the most genuinely exceptional circumstances. So I ask the House to agree that the rights of the British public should outweigh the rights of foreign criminals in the way the new immigration rules describe. The choice for a foreign national wishing to avoid deportation is now simple: do not break the law.
I said that I would come on to the best interests of a child. The best interests of a child in the UK must always be a primary consideration. That is what the law requires and the new immigration rules reflect how the best interests of a child should be taken into account in striking a proportionate balance between an applicant’s family life and the public interest, for both criminals and non-criminals. For non-criminals, where a child would have to leave the UK as a consequence of the decision to remove their parent, the question is then whether it is reasonable to expect the child to leave. The best interests of the child will normally be met by remaining with their parents and returning with them to their country of origin, unless the child is a British citizen or has been resident in the UK for at least the past seven years and it would not be reasonable to expect the child to leave the UK.
For criminal parents, there is a broader range of circumstances in which the public interest may outweigh the best interests of a child. For serious foreign criminals, those sentenced to four or more years, the best interests of a child will only outweigh the public interest in deportation of the foreign criminal in exceptional circumstances. For criminals sentenced to between 12 months and less than four years, or those sentenced to less than 12 months but whose offending has caused serious harm or who are persistent offenders and show a particular disregard for the law, deportation will still normally be proportionate.
Lisa Nandy
I am grateful to the Home Secretary for giving way; I know that she wants to make some progress. Can she give an assurance that decision makers will not try to second-guess what is in the best interests of a child? We would not accept that in any other form of decision making relating to children. The individual circumstances of the child must be considered in the decision-making process.
Mrs May
One of the points about what we are doing, to which I tried to allude earlier, is that there is a statutory duty—in section 55 of the Borders, Citizenship and Immigration Act 2009—to safeguard and promote the welfare of children in the UK. We are now bringing the consideration of the best interests of the child formally into the new immigration family rules, which reinforces that point.
I was talking about criminals who have been sentenced to between 12 months and less than four years or who are persistent offenders. Article 8 will prevent a deportation only if they have a genuine and subsisting parental relationship with the British citizen child or a child who has lived in the UK for at least the last seven years, if it would not be reasonable to expect the child to leave the UK with the foreign national criminal and if there is no other family member able to care for the child in the UK. Unless all three conditions are met, it will normally be proportionate to deport the criminal. If the criminal’s child is not a British citizen and has lived in the UK for less than seven years, the criminal can still be deported. If it will be reasonable to expect the child, whatever their nationality, to leave the UK, the criminal can still be deported. If there is another family member who can care for the child in the UK, the criminal can still be deported. These requirements represent a rational and proportionate qualification of article 8 rights in the interests of public safety and security, and I invite the House to endorse them.
Mr Brazier
My right hon. Friend is making a powerful case, and one that most Members will support, but is she aware that she has used the words “except in exceptional circumstances” seven or eight times already? If the court alone is free to determine what are exceptional circumstances, experience from other areas of the law suggests that in practice we might find that we make disappointingly little progress.
Mrs May
I recognise my hon. Friend’s concern, but there has to be a reference to exceptional circumstances. The way we are approaching it—setting out clearly the criteria that identify and describe the right to a private and family life—means that the exceptional circumstances will be far more limited than they have been up to now. As I hope he and others will understand from the detail I have given to the House, I have been going through every aspect of this carefully and setting out the expectations clearly. Therefore, I have every expectation that, in being able to look at those criteria and see what the public interest is in these matters, or how Parliament has defined the public interest, there would need to be truly exceptional circumstances indeed for someone to be allowed to remain in the UK outside the criteria. I have been clear that I have every expectation that this will have the impact we want it to have. If it does not, we will of course have to look at potential further measures.
Richard Drax (South Dorset) (Con)
I support the direction in which the Home Secretary is heading but have just one question. I might be jumping the gun, but given that so many countries practise torture—I think that she will reaffirm the position that prisoners are not sent back to such countries—what do we do in cases where we cannot send a criminal back to their country of origin because of this. As I have said, torture is used frequently around the world.
Mrs May
Under the convention, the question of whether someone will be subjected to torture relates not to article 8, but to article 3, I think—[Interruption.] I am getting nods from hon. Members. Of course, the European convention on human rights includes the statement that people should not be sent back to countries where they will be subject to torture, but the issue under discussion is one reason why, on a number of matters, we have negotiated with a number of countries throughout the world what is called “deportation with assurances”. This has been tested in the courts and enables us to deport individuals, with the assurance, which we have achieved through a memorandum of understanding, that they—individuals in those circumstances—will not be subject to torture when they are returned.
Dr Francis
Given the complexity of the changes and their number, instead of our having a debate today, would it not be more appropriate to refer the matter for scrutiny to some of the many Select Committees of this House, including my own? As Chair of the Joint Committee on Human Rights, I raised the matter earlier this afternoon with its members, who agreed with me that this was a matter of considerable concern which should be referred to our Committee. To illustrate the issue’s complexities, I note that 75 years ago this month 6,000 Basque refugee children arrived in this country. Would they have been excluded under these new rules?
Mrs May
I recognise the work undertaken on the matter by the Joint Committee on Human Rights, which the hon. Gentleman chairs, and, if he wishes to see a debate about the immigration rules, it is of course entirely open to the Committee and, indeed, to the hon. Gentleman himself, as I indicated earlier, to pray against them, but today I am asking Parliament to say, “We recognise there is a qualified right, and that qualification is set out in the immigration rules agreed by the House.”
The new immigration rules will demand that, for non-criminals without children to remain in the UK on the basis of their family life, they will have to show that they are in a genuine relationship. If they can pay their way and meet the income threshold and other requirements, they can qualify for settlement after five years. If they cannot meet those requirements, but insurmountable obstacles to family life with their partner are continuing overseas, they can enter a 10-year route to settlement.
To remain in the UK on the basis of a private life, applicants must have resided continuously in the UK for at least 20 years, discounting any period of imprisonment; or they must be under 18 years old and have resided continuously in the UK for at least seven years; or they must be aged 18 or over but under 25 and have spent at least half their life residing continuously in the UK; or they must be aged 18 or over, have resided continuously in the UK for less than 20 years but have no social, cultural or family ties with their country of origin. If applicants qualify under those criteria, they will enter a 10-year route to settlement.
The European convention on human rights also makes it clear that article 8 may be interfered with to protect the economic well-being of the UK. Strasbourg case law has established that this includes controlling immigration. This Government believe that anyone who wishes to bring a foreign spouse, partner or dependant to the UK should be able to support them financially, and we sought advice from the Migration Advisory Committee on the minimum income level that would allow a British citizen or a person with settled status in the UK to support an immigrant partner or dependant.
Following that advice, we have set the income threshold at £18,600, a figure that was at the lower end of the range recommended by the Committee, but the level at which a sponsor can generally support themselves and a partner without accessing income-related benefits. Children, of course, involve additional costs to the state, particularly in schooling, so, again following advice from the Migration Advisory Committee, the income threshold will rise to £22,400 for a partner and one child, with an additional £2,400 for each further child.
Both partners’ earnings from employment in the UK can be counted towards the new requirement, together with their non-employment and pension income, and significant savings can also be used to offset any deficit in income, but third-party support in the form of subsidies or undertakings will not be allowed.
An applicant whose sponsor is in receipt of a specified disability-related benefit or carer’s allowance will be exempt from the new financial requirement. We believe that the new financial requirements are necessary, proportionate and firmly in the public interest, and I trust Parliament will endorse that view.
It may be helpful to the House if I set out some examples of how the new rules might operate in practice. In a non-criminal context, there might be the example of a former student who came to the UK with his partner and one-year-old child. His relationship with his partner has now broken down, and he has seen his child—now aged four—only once in the last year. He has no role in the child’s daily care. His partner, also a student, continues to study, and she and the child will remain here for another year. As the former student’s course has now ended, he has applied under the family rules on the basis of his child. In this case, the child is not British and has not lived in the UK for the past seven years. The father is not a primary carer and does not appear to have a genuine and subsisting relationship with his child. His former partner is also here only on a temporary basis for one more year. The application would therefore be refused.
Another example might be that of a young married couple who met overseas. The woman subsequently came to the UK to study and they married here. The man is a British citizen who earns just less than the minimum income threshold, and the woman is no longer a student and is not working. The couple are genuine and their relationship is ongoing, and they may still be able to meet the income requirement, but if not, and if there is no evidence of any insurmountable obstacles to their continuing their family life together overseas, we would expect them to do so.
In criminal cases, there might be an example of a serious foreign criminal sentenced to four years imprisonment for class A drugs supply. He has no family in the UK but claims that over his previous 15 years in this country he has built up a substantial private life. This man’s crimes represent such a serious level of offending that they outweigh any article 8 issues. There is no evidence that his case is exceptional, and this criminal could expect to be deported.
Another foreign criminal is sentenced to two years’ imprisonment for actual bodily harm. He has been in the UK lawfully for seven years before being sent to prison and has a partner who is settled in the UK. Again, there do not appear to be any exceptional circumstances in this case. The criminal has been lawfully resident in the UK for less than 15 years. It is therefore proportionate and in the public interest for this criminal to be deported.
For too long, the rights of foreign criminals have been placed above the rights of the British public, and for too long Parliament has not given its view on when it is proportionate to remove those criminals in the public interest. We are putting that right. We are making it clear that the British public’s right to protection from crime trumps a foreign criminal’s weak claim to family life, and we are allowing the views of those in Parliament, as the democratically elected representatives of the British people, to be heard on this issue loud and clear. We trust that the courts will give due weight to a statement from this House.
Today I have outlined common-sense proposals with which I hope all right hon. and hon. Members can agree. I ask the House to approve this motion and to let its views be heard. I commend the motion to the House.
Yvette Cooper
That is not what the motion says. It deals simply with an issue of principle about whether Parliament should be able to set out how article 8 is interpreted. Various lawyers have said that the motion is little more than a statement of fact and is effectively the equivalent of the Home Secretary regarding the immigration rules as compliant with article 8.
That is what the motion does, but it is not clear whether the Home Secretary expects us to endorse the detailed content of individual immigration rules, only some of which she discussed in her speech—many were not discussed. She referred, for example, to foreign criminals. The Opposition believe that the Government’s broad approach to foreign criminals is the right one—we think it is right to take stronger action, including through the immigration rules and the Border Agency—but this process is not appropriate as a general rule for the scrutiny of the content of immigration rules. For Parliament to attempt such scrutiny just two sitting days after the rules were published would be inappropriate, and it would be unlikely to reassure the courts that the detail had been properly scrutinised and debated.
In particular, today’s debate cannot be about the detail of the wider family immigration rules, which were published only last week. Further scrutiny will be needed, because there are concerns about whether the rules are the most effective way of protecting the taxpayer, and whether they are fair and just. Those concerns should be debated properly, but that cannot happen in a debate on a general motion.
The motion refers simply to the broad immigration rules and cannot suffice as proper scrutiny or endorsement of the changes to individual rules. The Opposition are happy to support the Government’s approach to tackling foreign criminals, because we believe that more action needs to be taken, including through the immigration rules. We also believe the Government are right to consider how to ensure that article 8 is interpreted. In that way, they can provide a framework of guidance when it comes to dealing with foreign criminals through the immigration rules.
There is a wider challenge. The Home Secretary’s reason for introducing the motion was that she is concerned that more foreign criminals should be deported. She will know that the number of foreign criminals deported in 2011-12 fell by nearly 18%. If all those in the cases to which she referred—the 185 cases that the Home Office said were granted appeal on article 8 grounds—were instead deported, the number deported in the most recent financial year would still have fallen by around 15% on the previous year. Whatever the Home Secretary’s intention, the motion still deals with only a small minority of cases involving foreign criminals.
The border inspector has made it clear that one of the main reasons why people are not being deported is difficulty in obtaining travel documentation. Everyone recognises that that can be difficult and untimely in some cases, but those practical operations have clearly become significantly worse since the election, which is a deep concern. The Home Secretary has said nothing today to answer those concerns or to address the growing concern that the Border Agency’s performance is deteriorating substantially on the Government’s watch.
The Opposition want to be able to support the Government’s approach to tackling foreign criminals, but we need more answers from the Home Secretary about what she hopes the motion will do.
Mrs May
There is a very simple question for the shadow Home Secretary. Does she believe it is right that, as the courts have said, Parliament should give a clear view on what the public interest is in relation to the operation of article 8 of the European convention on human rights, on the right to a private and family life? If she believes that that is the case, and that fewer foreign criminals should be allowed to stay in this country on the basis of article 8, she should support the motion and give a clear message to the courts. I am beginning to think that she is trying to confuse the courts and to prevent them from taking that interpretation of the motion. Does she support a clear message to the courts or not?
Yvette Cooper
The Home Secretary talks about clear messages, but she is not giving a clear message to the House, never mind to the courts. She has been confused at every step about what the motion is supposed to do. Time and again, she has been asked whether it is supposed to trump case law or endorse the details of individual immigration rules, on which no opportunity for proper scrutiny has been given, and which have not even gone through the normal processes in the House. It is not clear whether this is supposed to be an endorsement of the existing immigration rules or the future immigration rules. She has not made her position clear.
We would like to be able to support the Home Secretary in her principled statement that article 8 should be discussed by the House and is a matter for legitimate debate. We also want to support her in taking action to deport more foreign criminals, but we urge her to do something about the real problem, which she is still ignoring. She also needs to provide answers to the House about how the detail on other aspects of the immigration rules, particularly on family and other parts of her proposed immigration changes, will be scrutinised, and whether she is trying to bypass the normal scrutiny processes.
The Home Secretary has not chosen a normal approach today. She needs to do more to deport more foreign criminals, but she should not try to subvert normal processes and should be straight with the House about what she is asking it to do.
Pete Wishart
Of course I have read the case. The hon. Gentleman has ruined his campaign totally. He has conducted a great campaign in some ways, because it has attracted a lot of attention, and good luck to him because he has managed to secure all these fantastic column inches in all the right-wing newspapers, but he has done himself no justice with that intervention.
When the Home Secretary made her statement the other day, I asked her about these other rules that we now have to consider, which I believe we are now being asked to support. They include the measure that a family has to come up with a minimum income guarantee of £18,600. In the statement, I asked the Home Secretary why there is a flat rate across the whole United Kingdom and why there are not different rates to reflect the different incomes in other parts of the UK. In Dundee, there is a different standard of living than in London docklands—that just makes sense. She said that it would not be possible to impose different rates across the UK. What absolute rubbish. That happens in Australia. The Australians have different immigration rules for different states and they seem to get along perfectly well. All we would need to do is license people. If there was an agreement for someone to come to one part of the UK, they would have to stay in that part or lose their right to stay here and be arrested and deported. That is simple, straightforward and could easily have been done, but the Home Secretary decided that was not for us, and now everyone across the UK has to have at least £18,600.
Even if that sum is secured, the partner is now likely to be stuck in the purgatory of a probation period of five years rather than the current two. If one is foolish enough to have children, the required income level rises substantially. We are told that this is to prevent migrants from sponging off the state, but Government statistics show that foreign-born people are less than half as likely to claim benefits as those who were born here. The measures will force families to choose between staying apart or moving abroad.
The Home Secretary ridiculously says that these immigration policies are not about numbers, but if they are not, why have the Government imposed the arbitrary cap that is already doing such damage to our universities, colleges and one of the few sectors of our economy that is actually booming?
The Minister for Immigration (Damian Green)
I think the hon. Gentleman is very confused. He is talking about a cap on universities but there is no cap on student numbers in this country. There is a cap on work visas, which is nothing to do with universities.
Pete Wishart
I am grateful to the Minister. He has received representations from countless educational institutions right across Scotland that have told him again and again about the damage that his immigration policies are doing to our university and college sector. I wish that he and the Home Secretary would respond positively and do the right thing for our universities and colleges, which are suffering in Scotland because of these Tory immigration policies.
This is such a Tory solution. There is one rule for the rich immigrant and another for the poor, forcing an estimated 15,000 families a year to emigrate or live apart. That is heartless and it gives the lie to the Tories’ manifesto claims to support what in their words is society’s building block—the family.
We will not do things this way and we look forward to getting the levers of immigration. We have observed what has happened down here and it does not work. We have seen the chaos of the UKBA and we will not do the same. We will make sure that Scotland is a welcoming, accommodating place when we have the levers of immigration at our disposal. I was at one of our national conferences at the weekend and I listened, consecutively, to an Italian Scot, an Asian Scot and a Frenchman who declared himself a new Scot and a European. Such people all contribute to the Scottish economy and to our community and culture. They have enriched Scotland. When we secure the full levers of immigration we will design a system that will attract the best and the brightest and we will address our demographic and population concerns. I cannot wait for that day when we will get rid of the Daily Telegraph, Daily Mail right-wing Tory nonsense determining our immigration policy here.
The Minister for Immigration (Damian Green)
I am grateful to Members on both sides of the House who have treated this important subject seriously today. I am also grateful for the support for the Government’s approach that eventually appeared from the Opposition Front Bench, although I was rather doubtful about it earlier, when the shadow Home Secretary was speaking. I am also grateful to the right hon. Member for Blackburn (Mr Straw) and the hon. Members for Glasgow South (Mr Harris) and for Strangford (Jim Shannon), as well as to those on the Government Benches who have spoken.
Let me deal with the central question. The motion clearly sets out for the agreement of the House where we believe the balance should lie between the right to respect for family and private life under article 8 of the European convention on human rights and the legitimate aims of our immigration controls. That view is reflected in the new immigration rules that we laid before the House last week. We are in complete agreement that article 8 is a qualified right. Article 8 sets out the basis on which the public interest can justify proportionate interference in individual rights to family and private life. It is the responsibility of the Government, and of Parliament, on behalf of the public, to set out when and how the public interest should qualify those individual rights. The immigration rules are the appropriate vehicle for the expression of the views of the Government and Parliament.
Pete Wishart
I am beginning to get confused all over again. I thought that we had received clarification on this earlier, but the Minister is now inviting us to support all the Government’s immigration rules, which will be unacceptable to many people in the House.
Damian Green
No sensible person would put that interpretation on what I have just said. No sensible person would put that interpretation on the motion that is before the House, which the hon. Gentleman has shown, over the past three and a half hours, he is incapable of reading. Read the motion, and you will see what we are debating.
The immigration rules are the appropriate vehicle for the expression of the views of the Government and Parliament. They are a statement of the normal practice to be followed by the Secretary of State’s caseworkers in making immigration decisions under the statutory framework that Parliament has provided.
Since the Human Rights Act 1998 was implemented in 2000, it has become increasingly apparent that the existing immigration rules do not provide a sufficiently clear and comprehensive framework for considering family and private life cases in line with article 8. The rules have not reflected adequately the factors that can weigh in favour of, and against, an applicant’s article 8 claim. The courts—understandably, as the Government have never set out for Parliament’s agreement a clear position on article 8 in the immigration rules—have had to decide for themselves on the facts of the cases before them whether article 8 did or did not provide a basis for the applicant to come to or stay in the UK.
The courts have therefore not been able to give due weight to Government’s and Parliament’s view of where the balance should be struck between individual rights and the public interest, as they have not known fully what that view is. As the Government and Parliament have not established the correct balance in the rules, the courts have arguably been as well placed as the Secretary of State’s caseworkers to assess the case and make a decision. In the absence in the rules of a comprehensive statement of public policy in these matters, the courts have developed the policy themselves through case law on issues such as the required level of maintenance for family migrants.
The changes to the immigration rules that we laid before Parliament on 13 June fill the public policy vacuum we inherited by setting out the position of the Secretary of State on proportionality under article 8. The new rules state how the balance should be struck between the public interest and individual rights, taking into account relevant case law and evidence. They provide clear instructions for caseworkers on the approach they must normally take, and they therefore provide the basis for a consistent, fair and transparent decision-making process.
As the immigration rules will now explicitly take into account proportionality under article 8, the role of the courts should focus on considering proportionality in the light of the clear statement of public policy reflected in the rules. They should not have to consider the proportionality of every decision taken in accordance with the rules on every immigration application. The starting point from now will be that Parliament has decided how the balance under article 8 should be struck, and although Parliament’s view is subject to consideration by the courts, it should be accorded the deference rightly due to the legislature on the determination of public policy. That is the approach that the new immigration rules seek to put in place in the immigration system.
By subjecting the public interest that the rules reflect to debate and approval in Parliament today, we are making good the democratic deficit we inherited on the operation of article 8 rights in the immigration sphere. We are also responding to the need that the courts have themselves identified for the Government and Parliament to take proper responsibility for these matters of public policy.
The hon. Member for Hyndburn (Graham Jones), who is not in his place, raised the important Mohammed case, which precisely illustrates why we are proceeding in this way. He asked a specific question about what would happen in a case like that where the sentence was not for 12 months or more. I am happy to repeat what my right hon. Friend the Home Secretary said in her opening remarks, that “even if a criminal has received a shorter sentence, deportation will still normally be proportionate if their offending has caused serious harm.” There is that additional power.
My hon. Friend the Member for Stone (Mr Cash) raised an interesting point, which was repeated by the shadow Immigration Minister, about which rules we should look at—the rules as they stand today or the new rules. Again, I am more than happy to repeat what my right hon. Friend the Home Secretary said, this time in her statement last week:
“I will shortly ask the House to approve a motion recognising the qualified nature of article 8 and agreeing that the new immigration rules should form the basis of whether someone can come to or stay in this country”.—[Official Report, 11 June 2012; Vol. 546, c. 50.]
That is what she told the House last Monday; that is what we are debating today.
The shadow Home Secretary and, indeed, my hon. Friend the Member for Canterbury (Mr Brazier) made points about the importance of removing more foreign national offenders, on which we agree. She asked why the numbers had come down. The simple fact is that fewer cases are arising that fit the deportation threshold. The numbers in this category are down approximately 12% in 2011 in comparison with 2010, while the overall prison population has not fallen. The number of people forcibly removed or departing voluntarily during the first quarter of 2012 has remained steady. It is slightly higher than in the fourth quarter of 2011, so I hope the right hon. Lady will be reassured that action is being taken on the very important point she raised about removals.
In what might be described as the less serious part of the debate, the hon. Members for Hayes and Harlington (John McDonnell), for Perth and North Perthshire (Pete Wishart) and for Glasgow South (Mr Harris) and my hon. and learned Friend the Member for Torridge and West Devon (Mr Cox) raised the issue of whether the courts would take any notice Parliament. What the new rules do are respond to what the courts have said about the lack of a clear framework in immigration cases for balancing individual article 8 rights and the wider public interest. The House of Lords—this was before we had the Supreme Court—observed in the Huang case back in 2007 that immigration lacks a clear framework representing the competing interests of individual rights and the wider public interest because the immigration laws
“are not the product of active debate in Parliament”.
That is precisely the purpose of today’s debate. We are having an “active debate in Parliament” on immigration rules as they affect the balance between individual rights and collective rights on article 8.
Frankly, this House ought to welcome the fact that Parliament becomes the central part of a debate on an issue that is important to our constituents. I am genuinely surprised that so many Opposition Members appear to think it inappropriate for Parliament to act in this way. I shall take up what must be a luxury for any Home Office Minister under any Government and pray in aid Liberty, which said today:
“Any fair immigration policy will be a combination of rules and discretion, allowing both for clarity and compassion in the handling of individual cases and the system as a whole. On that basis, Immigration Rules are the obvious way for any Home Secretary to seek to guide both her officials and the judiciary in their handling of cases.”
I think Liberty is exactly right in its interpretation. As I say, that is what we are doing today.
My hon. Friend the Member for Keighley (Kris Hopkins) can be reassured that we are indeed, as he urged, trying to deport as many criminals as possible. I hope he will be reassured by the figures that I read out a few moments ago.
My hon. Friend the Member for Esher and Walton (Mr Raab) has huge legal expertise in this matter and spoke with much wisdom. I was glad to hear from him that my answers to all his parliamentary questions have done some good in providing him with facts and figures. He asked what will happen if the courts do not respond. As my right hon. Friend the Home Secretary said previously, if we need to take further steps, we will, but we do not anticipate that happening.
My hon. Friend the Member for Witham (Priti Patel) eloquently pointed out how the distortions of human rights law have indeed created real problems in this country. She said she would like to see people taken straight from jail to the airport to be deported. I cannot quite promise her that, but I hope she is reassured to some extent that the average number of days between a foreign national prisoner finishing their sentence and being removed has decreased markedly. In 2008, it was 131 days; by 2011, we had got it down to 74 days, so we are indeed speeding up that process.
The hon. Members for Islington North (Jeremy Corbyn) and for Wigan (Lisa Nandy) talked about the best interests of children. The hon. Lady is quite right that she and I worked closely together for some time on these matters during the dark days of the previous Government when they were trying to do bad things through immigration legislation. Of course we recognise the importance of the statutory duty under section 55 of the Borders, Citizenship and Immigration Act 2009
“to safeguard and promote the welfare of children…in the UK”.
It is precisely for that reason that we have reinforced our approach by bringing a consideration of the welfare or the best interest of children into the new immigration rules. In assessing that best interest, the primary question in immigration cases involving removal is whether it is reasonable to expect the child to leave the UK. The best interests of the child will normally be met by their remaining with their parents. As the hon. Lady predicted, I make the point that in these rules, exceptional factors are allowed for.
There will be exceptional factors. I do not entirely share the hon. Lady’s view of the box-ticking nature of the way in which the UKBA and individual caseworkers approach these cases, not least because of the training that they have been undertaking—training to which, as she rightly said, she has contributed in the past. We are continuing to train so that our caseworkers act in a sensitive way, but exceptions can certainly be made in extreme cases.
In these rules we are introducing clear, proportionate requirements relating to who can enter or remain in the UK on the basis of their family life. They are requirements that reflect case law, evidence, independent advice and public consultation. We invite the House to agree that they are requirements which reflect the fact that family migration should be controlled in the public interest, and the fact that the best interests of a child in the UK should be taken into account.
Article 8 will cease to be an afterthought in the decision-making process, considered only after a decision has been made under the immigration rules. Instead, the determination under article 8 will be made according to the immigration rules which the Government have put in place, and which Parliament has agreed correctly reflect the public interest. We have set clear and transparent requirements as the basis for the ability of a partner, child or adult dependant of non-European economic area nationality to enter or remain in the UK because of his or her relationship with a British citizen or a person with settled status in the UK.
Applicants will have to meet clear requirements in the rules which reflect an assessment of the public interest. Those requirements are a proportionate interference with article 8 because they draw on the relevant case law, because there is a strong rationale and evidence for the fact that they will serve the public interest, and because, if Parliament agrees to the motion—as I hope and expect that it will—they will reflect the correct balance between individual rights and the public interest.
No set of rules can deal with 100% of cases, and there will be genuinely exceptional circumstances in which discretion is exercised outside the rules. However, it is in the interests of both the public and applicants for there to be a clear system to ensure fairness, consistency and transparency. The public, applicants and caseworkers need to know who is entitled to come or stay, and on what basis, and who is not. If there is to be a system of that kind, there must be rules: rules that deliver sustainable family migration to the UK that is right for the migrants, for communities and for the country as a whole, rules that properly reflect individual rights and the wider public interest, and, above all, rules that are set in Parliament, and not by individual legal cases. With that in mind, I commend the motion to the House.
Question put and agreed to.
Resolved,
That this House supports the Government in recognising that the right to respect for family or private life in Article 8 of the European Convention on Human Rights is a qualified right and agrees that the conditions for migrants to enter or remain in the UK on the basis of their family or private life should be those contained in the Immigration Rules.