Baroness Smith of Basildon (Lab)
My Lords, it is an indication of the discontent with Clause 11 that this is the second debate we have had on it. We had an interesting and lengthy debate on Clause 11 on Monday in relation to the principle of the Government’s proposals, and on our amendments and those of the noble Lord, Lord Hannay. Noble Lords may recall our strong opposition to the Government’s proposals to remove appeals in the way they are seeking to do. I will not repeat all the arguments that I made on Monday, other than where they are relevant to this amendment. However, for the convenience of the Committee, my comments are recorded at cols. 1178-81 of Monday’s Hansard.
Originally, Amendment 30, in the name of the noble Baroness, Lady Hamwee, was grouped with others on appeals, including a not dissimilar one from myself, Amendment 27, which in some ways is like a sunrise clause to review and improve the current position before any further moves are taken to change the system to administrative review, although we were more specific as regards using the expertise of the Chief Inspector of Borders and Immigration. That is not particularly significant at this stage; both amendments were tabled in response to the existing problems in the system, whereby a very high proportion of the decisions appealed succeed, and an even higher proportion of those are down to casework errors. Therefore, I have no difficulty whatever in supporting the principle of this amendment, although I had hoped that the noble Baroness would support the principle of my amendment when I spoke to it on Monday evening. I recall that no noble Lords present commented on our amendments in that debate other than the noble Baroness, Lady Lister, perhaps because she has degrouped her amendment today as she wants a separate debate on it, even though the principle involved is very similar.
I repeat the broader point that we made on Monday and invite the noble Baroness to comment on our very real and genuine concerns about, not just the detail, but the principle of the Government’s proposals. We can all sign up to a process that gives timely, accurate decisions, and a swift process to address any errors. I do not think there is any dissent around those principles. However, if we take this clause in context, that is not what it does.
On Monday, we also moved a Motion that this clause does not stand part of the Bill. That device is often used to give your Lordships’ House the opportunity to have a broader debate around the principles of an issue. However, I also made it clear that removing the clause entirely would be our preference given the current position and the quality of decisions that are taken. Failing that, our Amendment 27 addressed exactly the same principle as that in the amendment proposed by the noble Baroness, Lady Hamwee, today. I also spoke to our Amendments 28 and 29 regarding an impact assessment and a review.
Our concerns about this clause and the proposal for administrative review go deep and are not confined to any individual group who would be affected—a lot of the debate on Monday evening centred on students—as this goes wider and would affect everybody who applies for review. The right to appeal is a fundamental principle of British law. As I say, we support a process that gives timely, accurate decisions, and a swift process to address any errors. We believe that such a decision should be challengeable and that recourse should be available.
However, as I explained on Monday and as other noble Lords have said today, the necessity for appeals is even more essential when we know how flawed the current system is. It is well documented that the department is already struggling to deliver a quality service and that there are huge casework backlogs, to which the noble Lord, Lord Paddick, referred. I provided details of the backlog of shocking cases regarding the length of time for which people are waiting for decisions to be made. More important is the quality of decision-making. The figures reveal that 32% of deportation decisions, 49% of managed migration decisions relating to work and students and 49% of entry clearance applications were successfully appealed last year. Despite the fact, rather surprisingly, that there are no official data from the Government, a Home Office sampling exercise revealed that 60% of the volume of appeals allowed are due to caseworking errors. That means that almost 30% of all appeals—60% of the 49%—are allowed due to caseworking errors.
When so many decisions are found to be flawed, should we really be trying to remove the current routes for appeal and replace them with administrative reviews? I asked the Minister when the sampling exercise was undertaken and over what period of time. I know that he could not reply on Monday. If he is able to do so today or write to me, it would be helpful.
The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD)
I think that I did reply, if the noble Baroness looks at the Official Report. I said that it was between April and June 2013.
Baroness Smith of Basildon
That is really helpful and I apologise. I shall reread Hansard. I am sure that I did not doze off at that point.
As other noble Lords have said, we should focus on improving the efficiency of those initial decisions and making sure there is little need for appeals in the first place, because that is what will create confidence in the system, which itself will reduce the number of appeals. I am raising these points again now because it cannot be right that the Home Office’s response to its own inefficiency is simply to stop people challenging this inefficiency. I know the Minister pointed to an administrative review, but we have heard strong arguments today and previously that that is not the way forward. He said that the person reviewing the decision will not be the person who made the original decision but a cohort of immigration staff drawn from those who already make decisions. However, my understanding is that the Home Office already has a system whereby, in some cases, senior staff already review certain decisions. I cannot, therefore, see how an administrative review would be particularly significant if a number of decisions are currently overseen and reviewed by senior staff. Given the very high proportion of appeals allowed, which in most cases result from caseworking errors, it is clear that this problem with the quality of decision-making has to be addressed. Should that not be looked at by someone who is completely independent for there to be a real confidence in the system?
The noble Lord, Lord Avebury, raised the issue of the Government’s reliance on judicial reviews as recourse. A number of noble Lords today and previously have raised concerns about the cost. Not only do judicial reviews cost more than appeals but costs can be sought from the other party, and damages may be claimed but the Government have to recognise—indeed, they do so in their assessments—that the number of judicial reviews is likely to increase. The noble and learned Lord will be aware of the comments by the Joint Committee on Human Rights that the Government’s proposals on judicial reviews do not take into account the committee’s comments and do not look at how,
“the Government’s other proposals to reform both legal aid and judicial review itself”,
impact on the ability to seek judicial review.
I can understand why the noble Baroness has brought forward her proposal but I do not really understand why it had to be a stand-alone debate, considering that we had a similar debate on Monday, when her points could have been made. I see that the noble and learned Lord agrees. However, there is a strong case to oppose this clause as a whole, and I see this amendment, which is similar in principle to our proposal on Monday, as a fallback position and not the solution. I also hope that the Minister will recognise that there are great concerns about the principle and implementation of the Government’s proposals, and will look at them again, given that there have now been two lengthy debates on this issue.
Lord Wallace of Tankerness
My Lords, I thank my noble friend Lady Hamwee for tabling this amendment. She described it as being a self-standing amendment outwith Clause 11. However, it would delay the commencement of Clause 11 until such time as an instrument which provided for the conduct of administrative review had been approved by both Houses of Parliament. The proposed new clause also seeks to include within that instrument provision for procedures for administrative review to be agreed by independent persons, for oversight of those reviews by an independent person and for that independent person to report to Parliament. The proposed new clause also provides that Clause 11 should lapse after five years unless an order for it to continue in force is laid and not annulled by either House of Parliament.
The process governing administrative review will be set out in the Immigration Rules. There is no power in this Bill to make an order that will set out the administrative review procedure. Furthermore, as I have said, the administrative review procedure will be set out in the Immigration Rules prepared under the power in Section 3(2) of the Immigration Act 1971. The procedure under that Act provides that the Immigration Rules are laid before Parliament. Either House may seek a debate on those rules and pass a resolution disapproving of the changes proposed. Such a resolution would require the Secretary of State to lay further rules within 40 days. This procedure provides for parliamentary scrutiny of the process for administrative review, so there will be an opportunity for your Lordships’ House, if it so wishes, to scrutinise the process for administrative review, and indeed there will be an opportunity for Parliament to seek changes to that process. Therefore, I believe that it is unnecessary to seek an amendment to the Bill that provides for parliamentary scrutiny and approval of the rules governing the administrative review process. The process for scrutinising the Immigration Rules already provides for that.
However, I fully accept that there are concerns about the requirements relating to the administrative review process. Those concerns were expressed by the noble Baroness, Lady Smith, in our debates on Monday and are indicated by the new clause proposed by my noble friend and in the comments of a number of other of my noble friends. The safeguards sought are that the administrative review procedure should be agreed with an independent person, that there should be oversight of reviews by an independent person and that that independent person should report to Parliament.
It is our view that the administrative review procedure is best developed and finalised by those who will operate it. That does not mean that the process is being developed behind closed doors. As I think was acknowledged by my noble friend in moving her amendment, before Committee stage in the other place we published a statement of intent on administrative review setting out the details of the procedure, and it is that procedure which has come under scrutiny in this proposed new clause.
I can confirm that administrative reviews will be undertaken by Home Office staff who will be independent of the original decision-maker and entirely separate from the initial decision-maker’s line management chain. We intend to establish a separate administrative review function for in-country migration casework. This means that those undertaking the reviews will be separate from those taking the decisions under review. We expect some of our most experienced staff to be among those undertaking administrative reviews. That does not mean that the initial decision-making will be left to inexperienced staff. I agreed entirely with my noble friend Lord Avebury when he said that the important thing is to get these decisions right in the first place. I could not agree more. It is worth noting that only 10% of decisions taken in-country are refused and therefore only a proportionate number of experienced caseworkers will be redeployed to review work from initial decision-making.
The noble Baroness, Lady Smith, quite properly said that, of the cumulative figure of 60% from the sample, 30% of refusals are due to that kind of administrative error. However, it is also important to recognise that, in terms of the totality of decisions taken in this field, that amounts to something like only 3% of all decisions taken. Of course, that presumes that every decision on granting an application is correct—we tend not to have appeals against incorrect grantings—but that puts it into some kind of perspective. Although 30% is a high figure, I am not running away from the fact that 60% came as a surprise, and it is important that we bear down on and reduce that figure.
The point of arguing for an administrative review is that, as the noble Baroness pointed out from that sample, there have been caseworking errors. It is better that those on the receiving end of the errors are able to get them corrected more quickly and we are serious about meeting the 28-day target. Indeed, it would be far less costly to do so through an administrative review than through the whole panoply of an appeal.
Baroness Smith of Basildon
In the information that I have, a number of these decisions are reviewed later by a senior officer. If some of those are found to be incorrect, it would indicate that the review process is not as good as the Minister thinks. Does he know how many decisions ultimately appealed and won were reviewed by a senior officer as well as the initial decision-taker?
Lord Wallace of Tankerness
I am afraid that I do not have a figure for that further subcategory. If it exists, I will make sure that I inform the noble Baroness and others who have taken part in this debate, and will put a copy in the Library. That certainly could help to inform the debate as I am sure this issue may well arise later in our deliberations. All staff undertaking administrative reviews will receive full training in all routes and categories before they commence their work as part of the review team. I believe that the statement of intent indicated that it is intended to have a separate dedicated team of reviewers in each specialist area. Regular reports on the performance of the administrative review process as a whole will be sent to senior management. We will establish feedback mechanisms to ensure that lessons learnt are fed back to case workers.
I think I indicated in our debate on Monday that, within a year of the administrative review process being established, the Home Secretary will ask the independent chief inspector to include a review of the administrative review process in his inspection plan. Again, it is important to remember that the procedure will be set out in rules that Parliament can scrutinise. As I have said, we have committed to an independent oversight by the chief inspector in the public statement of intent that I have just read out. He has the power to undertake an inspection off his own bat and may do so if there are concerns about the administrative review process. His reports are published and Parliament may hold the Government to account in respect of those reports by means of questions and debates. Having to meet these additional requirements may also, if we were to go down the road proposed by my noble friend Lady Hamwee, delay the commencement of Clause 11. She quite properly said that there might be certain attractions in having two systems running in parallel, although I suspect that that would be a bureaucratic nightmare and would not properly serve the interests of anyone, least of all the applicants.
The delay in commencement is undesirable because it would delay migrants who would benefit from these changes, which would provide faster and cheaper resolution of caseworking errors. This delay could arise because the Home Office needs to identify an independent person who could take on the role envisaged in this amendment. This would also add an administrative layer to the development and operation of the administrative review. It is envisaged that the chief inspector would take on this role, a point that I already have made. We intend to benefit appellants and those who will no longer have a right of appeal under Clause 11. My noble friend Lady Hamwee proposes that it should lapse in five years unless there is parliamentary approval for it to continue in force, which I feel would not be of benefit.
Clause 11 fundamentally reforms appeal rights. It is a reform that is needed to simplify an overcomplex framework and to provide a faster and cheaper remedy for caseworking errors. However, because this reform is fundamental, reversing the change after five years could cause even further upheaval. The changes made to the appeals process and the court system would need to be undone. That could come not only at cost but also at the expense of considerable uncertainty.
My noble friend Lady Hamwee also made reference to the administrative review system that is already operating overseas. Some 90% of these reviews have been completed within the target of 28 days for the quarter ending June 2013. The proposed process for in-country, which we are debating here, mirrors the approach taken overseas. My noble friend also made the point that we are asking people to reverse the decision of their work colleagues and, as she quite properly put it, to overturn the decision of the Secretary of State. She mentioned the figures, including that in entry clearance cases in 2012 for operating overseas the initial decision was overturned in 21% of cases. I sometimes think that in this area you are damned if you do and damned if you do not. The figure of 21% is a sizeable number, which suggests that those who are doing the review are not necessarily intimidated by having to overturn the Secretary of State’s decision. Equally, one might say that 21% is far too high and that the figure should be lower, in which case they may say that they were frightened. The point is that the system that has been operating overseas has had 90% of cases completed within the target of 28 days. It shows that those who are doing the reviews are not scared off or hesitant in overturning decisions when mistakes have been made.
I recognise that there are concerns and I suspect we will return to this and that amendments will be tabled on Report, which will offer us a chance to reflect further on the points that have been made both today and on Monday. However, I believe that what we are putting in place will bring considerable simplification and lead to quicker and cheaper decisions. Therefore, for the reasons I have given on some of the detail but also because of the delays that could take place, the fact that there will be an opportunity for noble Lords to scrutinise the rules that will be put in place and because the chief inspector will be able to conduct his own review, I invite my noble friend to withdraw her amendment.
Baroness Hamwee
My Lords, I suppose that if the chief inspector will have added to his workload checking to see if and how anyone is damned, one question he may be asking privately is what extra resources there will be for that. I take the point about the rules, which now have to be in the form of an order, being an opportunity for scrutiny. However, as we all know, one cannot amend an order. I also need to ask, although I do not expect my noble and learned friend—
Lord Wallace of Tankerness
If I am wrong I will correct this, but my understanding is that if Parliament does not support the order when it is scrutinised, the Secretary of State is obliged to lay new rules within 40 days. It does not annul the rules but new rules have to be promoted within 40 days.
Baroness Hamwee
I am grateful for that. I do not think that it negates the question that I am about to ask, although my noble and learned friend may not be able to answer it at this point. It is about opportunities to feed into the draft rules before they come into final form. It is clear that there are a lot of points that could be constructive and helpful, which do not oppose the policy but come from the experience that so many people have of similar forms of process. What opportunity will there be to feed into the construction of the rules?
Also, how much detail will there be in the rules when they are proposed? The statement of intent, which to my mind raises some questions—I asked one or two of them—is probably more detailed than the rules. Anyway, as my noble and learned friend says, we may well return to this whole issue. Therefore, for today, I beg leave to withdraw the amendment.
Baroness Smith of Basildon
My Lords, as I understand Clause 12, it is all about dealing with appeals and provides a power for the Secretary of State to certify that to require an appellant who is liable to deportation to leave the UK before their appeal is determined would not cause irreversible harm, in which case that person can appeal only from outside the UK. We do not oppose the clause as a whole but these amendments are very useful in trying to probe the intention and practicalities. I have a few questions for the Minister.
I read Hansard from the other place, where questions were raised by my colleague David Hanson. I do not really feel that all the answers given fully addressed the questions to my satisfaction. It would be useful if the noble Lord could help address those. My understanding is that when the Bill was first introduced into the Commons it referred only to foreign criminals, but was then later amended to include all those liable to deportation. Mark Harper, who was then but is no longer the Minister, explained that this included,
“individuals who were being deported from the UK on the ground that their presence would not be conducive to the public good”.—[Official Report, Commons, Immigration Bill Committee, 5/11/13; col. 205.]
That was not in the Bill originally: it was introduced at a later stage.
When the then Minister was pressed on this, he gave a couple of examples such as a gang member or a member of a serious organised crime syndicate. I would not expect the Minister here to give an exhaustive list, and I am not asking for one, but the clause gives considerable discretion to the Home Secretary, or any future Home Secretary, who can determine who is deported under that definition. I should just like to probe further to get more information from the Minister about how that would apply and who it would apply to, but also the grounds on which, and how, the Home Secretary would make that judgment.
That is a very important point; there is a lack of clarity as the Bill stands. At the time, the Minister said that the numbers would be very small, but if the Government bring forward a clause such as this, they must have a reason for doing so. I should expect them to have some idea of the kind of number—I would not for a moment expect an exact number—of cases they expect the provision to apply to. I would like to know the reasons why this was brought forward in the first place and why the change was made from criminals to those who would not be conducive to the public good.
Another issue that has been raised is about the family members of those who have not been convicted of a crime but who have been deported under the clause. The Minister in the Commons said that he would write on that issue. He may have written to colleagues in the other place, but I have not seen his response. On removals, I would like to know the position of family members. The point has already been made about children, but there will be other vulnerable family members. What will be the position of family members, including vulnerable ones? What information will they be given? What happens if the person has been deported and then returns to the UK when they win their appeal? Indeed, will they be allowed to return to the UK if they win their appeal, or will they have to make a separate visa application to return?
I find a fair bit of uncertainty in the clause, and we lack information as to exactly how it will work. I should be grateful for further clarification from the Minister.
Lord Wallace of Tankerness
My Lords, I again thank my noble friend Lady Hamwee for moving her amendment and raising the issues which arise under Clause 12.
At present, all appeals where there is a human rights claim suspend deportation unless the claim can be certified as clearly unfounded. The powers introduced by Clause 12(3) mean that those facing deportation, including foreign criminals, may be deported, and their appeal heard while they are out of the country, if the Secretary of State certifies that that would not breach the UK’s obligations under the European Convention on Human Rights—a point well made by my noble friend Lord Bourne of Aberystwyth. This is intended to build on the Crime and Courts Act 2013, where the Government made similar provisions for out-of-country appeals in national security deportations. The serious irreversible harm test is one used by the European Court of Human Rights when it decides whether an individual deportation must be suspended, and also in its rulings on what types of claim must be granted an in-country appeal. Amendment 31 would limit the scope of the power to those who are being deported who do not have a child in the United Kingdom, while Amendment 31A would remove the power entirely from what would become Section 94B of the Nationality, Immigration and Asylum Act 2002.
I reassure the Committee that the clause will impact only on a very small cohort of cases—those whose actions and behaviour is non-conducive to the public good—and that in limiting the power to deportation cases, the Government are acting in a proportionate way, and not going as far as European Court of Human Rights cases allow. I assure the Committee that by framing the provision in this way, an arguable asylum claim would never qualify for certification under the power. The Secretary of State cannot use the new power where there is an arguable risk of a breach of Article 2 or Article 3 of the European convention.
Equally, the drafting of the Bill means that this power will not be available for those whom the Government are seeking administratively to remove for the purposes of immigration control—such as illegal entry or overstaying a visa, although ECHR case law would in fact have allowed such an approach.
A deliberate decision has been taken to make the power available only for a small cohort of cases where the individual’s actions—the action of the person for whom certification for deportation is relevant—the vast majority of whom will be convicted criminals. I will come on to the point raised by the noble Baroness about others. This applies if the individual’s actions mean that the Secretary of State considers that their presence in the United Kingdom is not conducive to the public good. Perhaps I may illustrate the size of the issue for the Committee. According to Ministry of Justice figures, in 2012-13 the Asylum and Immigration Tribunal received 1,800 appeals against deportation, which included a number of miscellaneous appeals. This change would have impacted on less than 2% of the appeals that the tribunal received that year.
The Government would not seek to remove family members of those whom we are seeking to deport if they have immigration status in the UK in their own right; for example, if they are an EEA national exercising treaty rights or individuals with indefinite leave to remain, or have valid leave as a student. Even in the rare cases where the Government seek to deport family members along with the principal, for example because their status in the UK is based solely on their relationship with the deportee, this clause does not allow the appeals of dependants to be certified: they will be suspensive. The power is also a permissive one in that the Secretary of State may certify appeals but is not required to. This will allow cases to be considered on their individual facts and ensure that the Government complies with their duty to consider the best interests of the child as a primary consideration in immigration decisions.
The noble Baroness asked what would happen if a person wins their appeal. If an individual wins an appeal from abroad, the UK Government will facilitate their re-entry into the United Kingdom.
In summary, the power will be used only where an individual’s own conduct, such as criminality, leads the Secretary of State to consider that their presence is not conducive to the public good. The clause is limited and tightly defined to ensure that only those who have caused or are trying to cause harm are deported from the country quickly.
Lord Woolf (CB)
Would the Minister be good enough to indicate what “facilitate” means? Does it mean that the Government are going to pay their costs of returning, as used to be the practice?
Lord Wallace of Tankerness
I am grateful to the noble and learned Lord. Clearly, there will be an opportunity to challenge the decision to certify taken before the deportation took place. We do not believe that there would be a liability to pay compensation if an appeal were successful. I think that I have a fuller answer somewhere on that particular point; I know that I have read it. If I do not get it in my hand before I sit down, I will certainly write to the noble and learned Lord. And here it is. If an individual wins at appeal, they will be entitled to return to the United Kingdom and the United Kingdom Government may pay for their airfare, which will be considerably less than the cost of detaining them while waiting for their appeal. I am grateful to the noble and learned Lord for his forbearance on that.
I was trying to get to the point at which the Baroness, Lady Smith, asked about the original Bill being amended in the House of Commons. The provision as it originally stood stated “criminals”, but that was extended because the Government realised on reflection that this definition would leave out a cohort of harmful individuals who should not have a suspensive right of appeal. That could include individuals who are being deported from the United Kingdom on the grounds that their presence is not conducive to the public good, a broader judgment than automatic deportation on the grounds of a single offence. For example, they could be gang members where witness intimidation and a culture of silence means that there has not been a successful prosecution but there is compelling evidence about their conduct that can be used in an immigration decision. The Home Secretary would consider the intelligence against a person and on the basis of that intelligence deport him as his presence in the UK would not be conducive to the public good.
A case is certified for the Special Immigration Appeals Commission on the basis that it has been taken considering secret intelligence, so it does go wider. My right honourable friend Mark Harper gave examples in the other place of where there may be good information and intelligence but, for reasons possibly to do with witness intimidation, it has not been possible to bring a prosecution. Obviously, this can be tested in any appeal which takes place.
I turn to Amendment 31, which was moved by my noble friend. The amendment would mean that this group of cases, of people whose presence in the UK is deemed harmful, would be able to use a child—who may have been in the UK for only a matter of days or weeks, because there is no definition of what a qualifying child would be—to avoid certification of their appeal and their early departure from the UK. They would be able to use the presence of that child even if they were not in fact responsible for caring for the child—who might live somewhere else or with other family members.
Baroness Smith of Basildon
My Lords, this is one of three groups of amendments around Article 8 that we have tabled to Clause 14. I wish to make a couple of brief comments. I want to put on record, and make very clear, that we fully support Article 8. We understand that it is not an absolute right. It is a qualified right and those qualifications also have to be understood. Any interference with that right has to be within those qualifications. However, we share concerns about how Article 8, and those qualifications, have been interpreted in some cases involving foreign criminals convicted in the UK and then put up for deportation. There are problems with criminals who we cannot deport who have committed serious crimes, and where Article 8 has been considered to be used inappropriately, and where the question has to be asked whether the qualifications have been fully considered. The balance is one to be reached by the courts in individual cases, but we consider it right that Parliament should set out how qualified rights should be balanced in different areas.
There is wider concern about the Government’s failure to deport foreign criminals and the gap between the inflammatory rhetoric used on some occasions with regard to immigration issues and the reality of those issues. Since the Home Secretary took office, the number of foreign criminals being released into the community has gone up and the number of people removed from our country for breaking the rules has gone down by 13% in the past three years. I say to the Minister that it is important for the Government to get the basics right before looking at new areas—for example, ensuring that we have the right staff and the right number of staff in place to deal with these issues.
I listened very carefully to the noble Baroness, Lady Lister, and I was relieved when the noble Lord, Lord Pannick, said that he was slightly confused about a contradiction that appears to have arisen in this context. I am a non-lawyer and I was confused as well. I was relieved to hear that lawyers can also be confused about the Government’s intentions in this regard. The noble Baroness, Lady Lister, made a very powerful speech and I will be interested to hear the Minister’s comments on it.
I welcomed the comments of the then Minister, Mark Harper, to the JCHR about the Government’s responsibilities under the UN Convention on the Rights of the Child. There was absolute confirmation that the best interests of the child will be considered. However, other comments have been made that appear to qualify that. That would seem to undermine the concept that the best interests of the child will be considered. I do not mean to be facetious when I say that it sounds as if the best interests of some children will be considered. I do not understand the contradiction between what is in the Bill and the very welcome comments made by the former Minister that the Government will always consider the best interests of the child. How does that conflict, confirm, or work with what is in Clause 14? Confirmation from the noble and learned Lord that the best interests of the child will be considered would be very welcome.
Lord Wallace of Tankerness
My Lords, I thank the noble Baroness, Lady Lister, for introducing this amendment, and thank those who have raised very important points in relation to children and the best interests of the child.
I crave the indulgence of your Lordships’ House to take a few moments, before I reflect on the specific amendments, to set out briefly what was in the Government’s mind in bringing forward this clause, and how we expect it to operate and what it is expected to achieve. I do so to set it in context for this and the next two groups of amendments.
Article 8 of the European Convention on Human Rights provides for the right to respect for private and family life. As the noble Baroness, Lady Smith, said, it is a qualified right. The individual’s right under Article 8(1) can be outweighed by measures necessary for and proportionate to the legitimate aims under Article 8(2), including protecting the public by deporting foreign criminals and safeguarding the United Kingdom’s economic well-being by controlling immigration.
There is a clear public interest in these aims. These are also matters of public policy which we believe is the responsibility of government to determine, subject to the views of Parliament. Clause 14 will make clear what Parliament thinks is in the public interest in terms of controlling immigration and protecting the public where Article 8 is engaged in an immigration case. It is for Parliament to decide what the public interest requires. It is then for the courts to have due regard to that when considering the proportionality of any interference in the exercise of an individual’s right under Article 8. We believe that is the right approach and that is reflected in how Clause 14 has been framed.
The Committee will recall our debates on the new Immigration Rules on family and private life which were implemented on 9 July 2012. The Immigration Rules, laid before Parliament by the Secretary of State under Section 3(2) of the Immigration Act 1971, 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. It is in the interests of a clear, consistent and transparent immigration system in which applicants and the public can have confidence that these rules should enable the Secretary of State’s caseworkers to decide individual cases lawfully and in accordance with the Government’s immigration policy. The courts have agreed the importance of having such a set of rules —for example, in the decision of the Judicial Committee of your Lordships’ House in the case of Huang.
The key test that both the Secretary of State and the courts apply in assessing the Article 8 compatibility of a decision is whether it is proportionate. However, in immigration decisions engaging Article 8, the courts, prior to the July 2012 rule changes, were unable to give proper weight to the Government’s and Parliament’s view of the public interest because the Immigration Rules did not adequately reflect Parliament’s view on how the balance should be struck between the individual right to respect for private and family life and the need for effective immigration control to protect the public and the economic well-being of the United Kingdom.
I shall provide a bit of history. When the Human Rights Act 1998 was commenced in 2000, the rules were amended to require all Home Office staff to carry out their duties in compliance with its provisions, but there was no substantive change to the family or private life part of the rules to reflect how individual rights and the public interest should be balanced. There was no attempt thereafter to align the rules with developments in case law, such as the decisions of the Judicial Committee of your Lordships’ House in the cases of EB (Kosovo) and Chikwamba. Instead, previous Secretaries of State asserted that if a court thought that the rules produced disproportionate results in a particular case, the court should itself decide the proportionate outcome on the facts before it. This approach meant that the courts could not give due weight to the Government’s and Parliament’s view of the public interest under Article 8, as the courts did not know what that view was. It also did not properly reflect the responsibility of the Government and Parliament for determining the public policy framework under which immigration decisions should be taken. Indeed, as I have already said, it left the courts to develop public policy themselves through case law on issues such as the appropriate level of maintenance for family migrants. We do not believe that that was conducive to clear, consistent and transparent decision-making by the Secretary of State’s caseworkers.
It was against that background that on 9 July 2012 the Government implemented major reforms of the Immigration Rules relating to private and family life. The new rules filled the public policy vacuum that had been inherited by setting out the position of the Government on proportionality under Article 8, in the light of existing case law and of evidence such as the report of the independent Migration Advisory Committee on the appropriate level of the minimum income threshold for sponsoring family migrants. The new rules were debated and approved by the House of Commons on 19 June 2012 and were debated by this House on 23 October 2012, following which the noble Baroness, Lady Smith of Basildon, withdrew her Motion of Regret. The new rules set out how the balance should be struck in Article 8 cases between an individual’s rights and the public interest. They provide clear instructions for the Secretary of State’s caseworkers on the approach they must normally take, and they therefore provide the basis for a clear, consistent and transparent decision-making process. The new rules also form the basis for the assessment by the courts of the proportionality under Article 8 of immigration decisions. The Court of Appeal has endorsed the lawfulness of such an approach in the case of MF (Nigeria).
The courts have a clear and proper constitutional role in reviewing the proportionality of measures passed by Parliament and of the executive decisions made under them, and must ultimately decide on what is a proportionate interference under Article 8. I should stress that Clause 14 does not seek to change this proper judicial function. However, it is right that the Secretary of State should expect the courts to give proper weight to the view endorsed by Parliament on how, broadly, public policy considerations are to be weighed against individual family and private life rights when assessing Article 8 in any individual case. The courts themselves have underlined the importance of the view of Parliament on such matters and have confirmed that they will defer to that view where it is known.
However, some judges have since given only limited deference to the new rules, and say that they represent only a weak form of parliamentary scrutiny. The Upper Tribunal has said that,
“Whilst it is open to Parliament to change the law by primary legislation unless and until it does so these”—
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“decisions are binding ... and will be followed”.
I hope that I will not embarrass the noble and learned Lord, Lord Mackay of Drumadoon, by quoting him. He said in the case of MS v the Home Secretary in the Extra Division of the Inner House last year:
“The rules are not a statute but merely a statement by the executive of how it intends to exercise powers conferred by statute. Consequently the application of the rules in individual cases is potentially subject to judicial review. Nevertheless, the new rules have been debated in Parliament, which confers a certain degree of democratic approval. Moreover, they are instructions put forward by the minister in a democratically elected government who is charged by statute with the administration of the immigration system. To that extent, too, the rules can be said to result from democratic processes. These are factors which must be given some weight when a court considers the application of the rules, although they cannot be conclusive because the rules do not have the force of statute”.
By bringing forward Clause 14 we seek to invite Parliament to give the status of statute to the rules, which are set out substantially in the same terms as the Immigration Rules that your Lordships’ House debated in October 2012.
Baroness Lister of Burtersett
I am sorry to interrupt the noble and learned Lord but I thought I would do so now rather than wait until my response at the end of his remarks. I did address the argument concerning the seven-year period—that point had already been made. I asked specifically why, as the noble and learned Lord said, the case refers to children aged four when the period given is seven years. I gave a specific example of how I know personally that a child under seven can have very strong connections outside the family. The Minister has not addressed that point.
Lord Wallace of Tankerness
My Lords, as I think the noble Baroness alluded to when she moved the amendment, in the Public Bill Committee in the other place my honourable friend Mark Harper, who was then the Immigration Minister, indicated that the age of seven had previously been brought in as a concession —known as DP5/96, from which I assume that it was brought in in 1996—against deportation where children had accumulated seven years of continuous residence. It was withdrawn in December 2008 in favour of a case-by-case approach applying Article 8. However, as we made clear in the debate on the rules, that left it to the courts to develop the policy on what Article 8 required and it led to uncertainty and inconsistency. Therefore, the period of seven years had applied before.
I do not disagree that there may be cases that need to be looked at individually but the important point that we are seeking to make here is that it is for Parliament to indicate what it believes the age of a qualifying child should be. We are saying that in our judgment it should be seven, for the reasons I have articulated. I also indicated that ultimately it will be for the courts to determine the proportionality of a decision. However, passing this primary legislation will give a strong steer and an indication to the courts of what Parliament believes to be in the public interest. That is a judgment that the Government have made. I think I am right in saying that it was in the 2012 rules, which have been considered and which we now invite Parliament to endorse and to put into primary legislation.
The noble Baroness asked whether I could confirm that guidance will be published and how the Section 55 duty will apply in relation to cases considered. I confirm that it is our intention to publish guidance setting out how the best interests of the child will be considered. As I have already said, Section 55 requires the Secretary of State to have regard to the best interests of the child as a primary consideration, and the Bill does not change that.
I will write separately to the noble Baroness, placing a copy in the Library, in response to her query about the response to the asylum report and the consideration of children’s best interests. The Home Office response to the UNHCR report on asylum is still being considered.
Amendment 43 would replace “unduly harsh” with “disproportionate” when considering the effect on the partner or qualifying child of the deportation of a foreign criminal who has not been sentenced to imprisonment of four years or more. However, this would not reflect sufficiently clearly the weight that should be attached to the public interest in the deportation of such a foreign criminal. Nor would it achieve the aim of the legislation, which is to set out clearly how the Secretary of State and the courts should approach the proportionality test, taking account of the public interest as properly determined by government and Parliament.
We believe that the children’s best interests must be a primary consideration. We fully accept that and Clause 14 is carefully designed to reflect that. However, it is simply not the case that a child’s best interests will outweigh every other possible countervailing factor, including illegal immigration and serious criminality. Nor is it the case that the UK is obliged to allow all migrants who are parents to remain in the UK where this is in one child’s best interests, ignoring the interests of other members of the public, including children.
In cases that do not fall within the scope of Clause 14, consideration will still be given to the individual facts of the case having regard to Article 8 and Section 55. Clause 14 does not seek to cover every possible situation in which an Article 8 or Section 55 issue may arise. That would be too complex and unwieldy.
In EA (Nigeria) the court said that, in considering the best interests of a young child, the correct starting point is to assume that it is in the best interests of a child to live with and be brought up by his or her parents unless there are very good reasons why that is not the case. Therefore, where the child is being removed with their parents and as a family to that family’s country of origin, that is not a breach of Article 8 and we believe that it is consistent with the children duty in Section 55.
I hope that the House will agree that technical legal arguments about whether the best interests of a child is “a” or “the” primary consideration, or the order in which various factors must be considered, can be a distraction. The important point is that we comply with the obligation to treat the best interests of the child as a primary consideration. We believe Clause 14 is entirely consistent with that. The noble Baroness’s amendment has afforded me and other parts of the House the opportunity to make that very clear. However, we believe that the amendments would draw lines in the wrong place. For those reasons, I invite the noble Baroness to withdraw her amendment.
Baroness Smith of Basildon
My Lords, I hesitate to engage in this Celtic discussion. I am half Scottish, which might help, and I recently visited Patagonia. All the people in the Welsh community I met there also spoke English, curiously, otherwise we would not have been able to communicate with them.
The amendments highlight something on which I need clarification. This is not the normal legal language that we see in legislation; it seems to be more a statement of fact or opinion. The noble and learned Lord, Lord Mackay, made a powerful point when he said that financial independence was not related to language. I am curious about the evidence base for the statement in the Bill. To be better integrated into society is easier to understand, but is being less of a burden on the taxpayer automatically the case? On what evidence did the Government base that before bringing it forward?
The provisions are confusing because this is not the usual legislative language that we see in Bills such as this. Is there any concern that the courts will not understand how to interpret the decisions that they are making? I am curious about what guidance the Government will provide relating to this specific part of new Section 117B(2).
Lord Wallace of Tankerness
My Lords, I thank the noble and learned Lord, Lord Mackay of Drumadoon, for this amendment and I thank my noble friend Lord Roberts for his spirited endorsement of it. I readily appreciate the concerns raised by the noble and learned Lord about the provision made by Clause 14 on the public interest in migrants being able to speak English and also in being largely independent. We believe that these are important elements of the provision made by Clause 14 as to the public interest in controlling immigration to safeguard the economic well-being of the United Kingdom under the qualified right to respect of private and family life under ECHR Article 8.
The noble Baroness, Lady Smith, said she thought that the language was not normal for legislation—it might actually be simpler in parts than in some legislation we have grappled with. The reason for that is one that I articulated when I set the scene. With Clause 14, we have basically sought to put in statute the Immigration Rules, which were debated and have been in place since 2012. In some places, the language is not in the usual statutory form because it has been substantially carried through from the Immigration Rules. That also answers the question of whether the courts will have difficulty interpreting it because of that. I do not believe that they should, because they have been interpreting these rules since the middle of 2012. The point is that they will now have, if Parliament so decides, the full force of statute rather than simply being rules. That also answers the point raised by the noble and learned Lord as to whether we had considered Welsh and Gaelic prior to bringing this clause forward. The answer is no, we did not, as this was being lifted from rules that were already there, which stipulated English.
As has been made clear, Amendments 34 and 35 propose allowing a migrant to rely on their ability to speak Welsh or Gaelic, instead of English, when applying for leave to enter or remain in the United Kingdom on Article 8 grounds. I want to make it very clear that I am not a Welsh or Gaelic speaker but that the Gaelic Language (Scotland) Act 2005, to which the noble and learned Lord referred, was brought forward by an Administration in which I was the Deputy First Minister. I do not think anyone can challenge my support for the Gaelic language. As my noble friend Lord Roberts knows, I have a strong affinity with my Celtic colleagues in Wales and have had very many enjoyable Welsh evenings at our party conferences, when the songs have been well sung in Welsh and English.
We believe that a command of English is essential in helping migrants integrate into the life of the UK as a whole and in improving their employment prospects. That is the case even if a migrant is living in a Welsh-speaking or Gaelic-speaking community. Indeed, the possible consequence of the amendments is that if someone were able to meet a test in Welsh, for example, along with all the other tests, they could get entry into the United Kingdom. Having done that, they might choose to not go anywhere near a small village in Carmarthen or Carnarvon but instead go to Newcastle upon Tyne, despite not really having a word of English.
We do not doubt that Welsh and Gaelic speakers would contribute to the economic well-being of the United Kingdom, but migrants to the UK should be able to speak English to a basic level when they apply to come or remain here. Speaking English is necessary to ensure that a migrant is able to integrate and play a full part in our society. The ability to speak English also reduces the burden on the taxpayer arising from the cost to public services of translating information or guidance into other languages. We do not believe that the inclusion of the Welsh and Gaelic languages in Clause 14 would support that objective. It would not reflect the public interest in reducing taxpayer burdens and promoting integration.
I also ask the House to consider some practical issues involved in making such provision. First, there is no infrastructure to support the testing of ability in these languages on a global basis, even I think in Patagonia —the noble Baroness may know whether we have a consulate there. Secondly, the demand is likely to be very low. There have been no requests for testing in Welsh or Gaelic as an alternative to English since the introduction in November 2010 of an English language requirement for spouses and partners applying to enter or remain in the UK. Thirdly, in view of the likely low demand, the setting up and maintenance of a secure and reliable global network of test providers would be unlikely to be commercially viable. If commercial providers were not willing to offer tests, it would fall to the Home Office to set up the required infrastructure in the United Kingdom and overseas. This would represent a significant and disproportionate cost to the taxpayer.
Amendment 36 seeks to amend the drafting of the integration aspect of the public interest in migrants being able to speak English. It clearly is in the public interest for a migrant seeking to enter or remain in the UK to be able to speak English. Parliament has already approved this for spouses and partners, for example as part of the family Immigration Rules. English language skills play an important part in a person’s successful integration into society and help migrants access employment opportunities and contribute to the wider society. However, although in some cases it may be true that migrants who can speak English are likely to be able to integrate, their ability to integrate does not rest solely on their ability to speak English. None the less, there can be no doubt that the ability to speak English will mean migrants are better able to integrate into British society. I therefore suggest that the intention here is better reflected in the current wording of Clause 14.
Amendment 37 seeks to remove the promotion of integration as a factor in the provision made by Clause 14 as to the public interest in migrants being financially independent in immigration cases which engage Article 8. Those who choose to establish their family life in the UK by sponsoring a non-EEA national partner and any dependent non-EEA national children to settle here should have the financial means to support themselves and their families for the long term without needing to rely on public funds. This safeguards the United Kingdom’s economic well-being by preventing burdens on the taxpayer. In addition, being financially independent also helps ensure that a migrant is able to integrate and play a full part in our society.
It is important, for example in facilitating community involvement, that migrants should be able to use local shops, local services and public transport in an ordinary, everyday way that is not inhibited by a lack of funds. The same applies to adult education resources, such as English language classes, for which a fee may be charged. This is consistent with available evidence on effective integration, which shows that the level of migrant household income is an important factor.
The OECD report, Settling In: OECD Indicators of Immigrant Integration 2012 has shown a clear connection between effective integration and the level of migrant household income. The report states that household income and wealth have been shown to be important for a broad range of socioeconomic outcomes, in areas as diverse as health, education and civic participation. The report also found that having insufficient income may hamper migrants’ ability to function as autonomous citizens, which may have consequences for social cohesion. The report underlines the importance of migrants having access to sufficient funds to enable them to participate in the life of their local community. Despite declaring that I support the promulgation of the Welsh and Gaelic languages, I think it would be inappropriate in this context, and in the light of these points I hope that the noble and learned Lord will agree to withdraw his amendment.
Lord Mackay of Drumadoon
I am grateful to noble Lords who spoke in support of my amendment. I am also very grateful to the noble and learned Lord not only for his very detailed response to my submissions and remarks on the present amendment but for some of his earlier responses, which will be of great interest to a number of people. In these circumstances, I seek leave to withdraw the amendment.
Lord Wallace of Tankerness
My Lords, I thank the noble Lord, Lord Pannick, for moving the amendment, which has given us an opportunity to air a number of important points, and I thank all noble Lords who took part in the debate. I do not intend to repeat what I said in my introductory remarks when we discussed the first group of amendments to Clause 14. However, in responding to noble Lords, I may have to repeat one or two of the points that I made.
I emphasise a point made by the noble and learned Lord, Lord Brown of Eaton-under-Heywood. We have sought to put this into statute. The Government have come to Parliament to get Parliament to indicate clearly in primary legislation what it considers to be the matters in the public interest, given that Article 8 is not an absolute right under the European Convention of Human Rights but, rather, a qualified one. It is part of our debates that we should not only respond to invitations from the judiciary, but debate what that public interest should be. That is indeed what we are doing in debating these matters.
I turn first to Amendments 38, 38A, 38B, 39 and 39A. The noble Lord, Lord Pannick, the noble and learned Lord, Lord Hope of Craighead, and the noble Lord, Lord Hylton, propose to remove the provision in Clause 14 that “little weight” in terms of the public interest should be given to family life with a partner, or to private life, which was formed when the person was in the UK unlawfully or to private life formed with precarious immigration status. The amendment of the noble Baroness, Lady Lister of Burtersett, would remove the statement of weight attached to the public interest in circumstances where private or family life was established with unlawful status, or private life was established with precarious status. The noble Lord, Lord Pannick, and the noble Baroness, Lady Smith, raised the issue of the wording of “little weight” and asked where that came from. The Human Rights Act requires courts to take into account Strasbourg judgments, but the requirement is not to follow them. However, the clause indicates that, in relation to precarious immigration status, we expect the court to follow the Strasbourg case law.
I digress for a moment, because the noble Lord, Lord Pannick, also said that precarious immigration status was not defined. As I understand it, Strasbourg case law makes it clear that it covers those temporarily in the country. It is a term that has to be interpreted by the courts, but that is the case whether or not the provision is in the Bill, as it is the correct legal test in determining what weight to give to Article 8 rights. “Precarious” is difficult to define in a Bill, as there are many different types of immigration status. If one takes the case, for example, of Rodrigues da Silva and Hoogkamer v the Netherlands, the European Court of Human Rights found:
“Another important consideration will also be whether family life was created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the host State would from the outset be precarious. The Court has previously held that where this is the case it is likely only to be in the most exceptional circumstances that the removal of the non-national family member will constitute a violation of Article 8”.
It was to capture that jurisprudence of the European Court of Human Rights, which the Government believe is a proper determination of such a situation, that that has been carried through into the provision in the Bill: that the courts, in taking into account Strasbourg judgments, would give little weight in those circumstances.
The clause reflects that those who enter the UK for a temporary purpose, such as work or study, can have no automatic expectation of being allowed to settle here. Any private life that they develop must be seen in the context of the expectation of their returning to their country of origin. Those who form private or family life while in the UK unlawfully can have even less expectation of being allowed to stay here.
It is important that the immigration system rewards those who obey the rules and provides a clear disincentive to those who do not. These provisions make clear what we believe to be the public interest in that respect. As I said, they reflect the case law of the European Court of Human Rights in Strasbourg, which has consistently placed little weight on private or family life formed during a time when a person’s immigration status is precarious.
More generally, the Strasbourg court has made clear that the European Convention on Human Rights does not guarantee families a right to reside in a particular country and has consistently recognised that the Executive enjoy a significant margin of appreciation in determining how most appropriately to control immigration. Clause 14 is framed within the margin of appreciation afforded to states in this respect.
It is right that Parliament should make clear its view that little weight in terms of the public interest should be given to family life with a partner, or to private life which was formed when the person was in the UK unlawfully or to private life formed with precarious immigration status. We do not believe that that encroaches on the proper judicial function. It will remain a matter for the court to decide whether the weight to be accorded to the public interest as set out by Parliament in Clause 14 outweighs the individual’s right to respect for private and family life, and therefore whether the decision is proportionate in Article 8 terms.
The noble Lord, Lord Pannick, referred to the fact that my noble friend Lord Taylor of Holbeach had signed the Section 19A certificate in regard to the European Convention on Human Rights and asked whether we believe that it is consistent with it. The answer is: yes, we do believe that it is consistent. I understand that that was not challenged by the Joint Committee on Human Rights. I acknowledge that certain important points were raised, but I do not understand the Joint Committee on Human Rights to have challenged that.
In Amendments 41 and 44, the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Hope of Craighead, propose to remove most of the provisions setting out specific public interest statements to which the courts would be required to have regard when assessing an Article 8 appeal against deportation from a foreign criminal. The public interest statements in question set out when, in the case of a foreign criminal sentenced to less than four years’ imprisonment, the public interest will be outweighed by an individual’s private life in the UK, or by their family life with a qualifying child, or by their family life with a qualifying partner. The public interest statements also reflect a higher threshold for those sentenced to imprisonment of four years or more, which we believe reflects the very strong public interest in deportation, given the seriousness of these types of crimes. Only where there are very compelling circumstances will the public interest be outweighed by Article 8 rights in such a case.
The effect of Amendments 41 and 44 would be to leave just two statements of what is in the public interest when assessing whether it is proportionate to deport a foreign criminal: first, that the deportation of foreign criminals is in the public interest; and secondly, that the more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal. Much of the detail in the clause appears in the Immigration Rules, which Parliament considered in 2012. The two statements that would be left if Amendments 41 and 44 found favour with the Committee would not alone achieve the overall aim of Clause 14, which is to ensure that Parliament’s view of the weight to be attached to the public interest in deportation is taken properly into account by the courts when considering cases engaging Article 8, thereby achieving greater fairness and consistency in appeal outcomes.
Of course, as was acknowledged by the noble and learned Lord, Lord Brown, every appeal must be assessed on its individual facts and, where there is a right of appeal, the courts must ultimately decide what is proportionate in Article 8 terms. Clause 14 does not seek to change that proper judicial function; rather, the amendments would remove much of the framework which Clause 14 provides for weighing the public interest in the deportation of foreign criminals as part of that proportionality assessment.
We believe that the benefits of a framework set out by Parliament in primary legislation are clear. It is right that Parliament’s view of the public interest should be given proper weight in immigration and deportation decisions engaging Article 8. Such a framework will also bring greater efficiency, consistency, fairness and transparency of decision-making.
Parliament has not previously provided a full and clear statement in legislation on where the public interest lies in considering family and private life claims. As I said before, the 2007 Act requires the Secretary of State to make a deportation order against a foreign criminal sentenced to at least 12 months’ imprisonment, unless one of the several specified exceptions applies, including where deportation would breach the criminal’s human rights. Although an indication of the public interest, it is a limited view, and does not assist the courts in determining how to balance an individual’s right to family and private life against that public interest.
Inevitably, therefore, the courts have had to reach their own view on public policy imperatives. In other words, it has been left to the court in an individual case to determine how best to balance relevant factors, based on the decision-maker’s individual perception of public policy considerations. I am sure we all agree that it is right and proper for the Government to make decisions about public policy, subject to the views of Parliament, and ensure that the public interest is given proper weight.
The statements of public interest contained in Clause 14 reflect the basis of the new Immigration Rules which was approved in October 2013 by the Court of Appeal in MF (Nigeria), as the noble Lord, Lord Pannick, said. The court found that the new deportation rules provide a “complete code” for dealing with Article 8 claims and that where specific family and private life exceptions to deportation were not met,
“it is necessary to consider whether there are circumstances which are sufficiently compelling … to outweigh the public interest in deportation”.
The noble Lord asked why we were doing this, given the decision of the Court of Appeal in MF (Nigeria). Looking at the chronology, I suspect we would find that the Bill was introduced into the other place almost within days of that decision being handed down. I can assure the noble Lord that legislation is not produced within days and is some time in the gestation. We thought it important, given that the Upper Tribunal has said in the case of Izuazu—I am sure that the noble and learned Lord, Lord Brown, would pronounce that name better—that:
“Whilst it is open to Parliament to change the law by primary legislation unless and until it does so these”,
previous,
“decisions are binding on the Upper Tribunal and will be followed by it”.
By putting statements into primary legislation, Parliament will have made clear its view on where the public interest lies and we expect the courts to have proper regard to that.
I also make the point in passing that the inner house of the Court of Session is on an appellate par with the Court of Appeal and that, as I cited earlier, the noble and learned Lord, Lord Mackay of Drumadoon, observed on the case that I referred to that these rules did not have the force of statute. It is important to observe that in that case, the inner house’s extra division actually upheld the position of the Secretary of State for the Home Department, so it is not as if we were crying foul or anything like that. It is also the case that MF (Nigeria) concerns deportation cases whereas Clause 14 concerns public interest considerations more generally. It will also enable the court to consider the public interest in family cases and private life cases that do not necessarily involve foreign criminals.
Unlike the Immigration Rules, Clause 14 does not contain requirements to be met but factors to be considered, in the form of public interest statements, to which the courts will be required to have regard. This recognises that there must continue to be an assessment of the individual facts of each case and that the decision on proportionality under Article 8 continues to lie, ultimately, with the court. The statements, however, ensure that Parliament has decided what the public interest requires and not the courts. In formulating the public interest statement that a foreign criminal sentenced to a period of imprisonment of at least four years must be deported unless there are very compelling circumstances, the Government took account of Parliament’s approach in approving the Legal Aid, Sentencing and Punishment of Offenders Act 2012. This Act amended the Rehabilitation of Offenders Act 1974 to reflect that a sentence of imprisonment for a term exceeding four years will never be rehabilitated or “spent”.
Parliament therefore appears, in recent legislation, to have endorsed the position that a term exceeding four years’ imprisonment represents a very serious level of offending indeed. The Government consider that a custodial sentence of at least four years is one which means that it will almost always be proportionate to outweigh any family or private life considerations and, as such, would require compelling circumstances to lead to an outcome other than deportation. This is the approach we adopted for deportation cases in the new Immigration Rules, using the term “exceptional circumstances”. We are trying to bring greater clarity to decision-making, not return to the difficulty which the courts have already experienced in assessing complicated individual circumstances against case law in the absence of a clear statement from Parliament of what the public interest requires. To remove the exceptions to deportation from Clause 14, as proposed, would be to remove Parliament’s clear statement of its view of the weight that should be attached to the public interest in deportation, thereby undermining the purpose of that provision.
Finally, I turn to Amendment 46, tabled by the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Hope, which is contingent on Amendments 41 and 44. This would delete the provision explaining how to interpret references to a person who has been sentenced to a period of imprisonment of a certain length of time. As the House will appreciate, a definition of “a period of imprisonment” is required to ensure that there is no confusion in the application of Clause 14. Section 38 of the UK Borders Act 2007 sets out what constitutes,
“a period of imprisonment of at least 12 months”,
for the purposes of that Act. The interpretation for Clause 14 has been drawn from that and is necessary for the avoidance of doubt and to ensure consistency, both across primary legislation and in the application of the new provisions. In the light of these explanations I encourage the noble Lord, Lord Pannick, to withdraw his amendment.
Lord Wallace of Tankerness
I sought to try to explain that that expression of little weight was really a way of putting into statutory form what we believe is in fact the practice of courts in the cases which are here. I think it was in the case against the Netherlands; I do not know the first name involved but the other was Hoogkamer. I am sorry not to get that right. We were seeking to say that we endorse what the position of the European Court of Human Rights has been on that. Whereas under the Human Rights Act the court is asked to consider and have regard to the Strasbourg jurisprudence, what we are seeking in this is to say that we agree that the court should follow the Strasbourg jurisprudence. This has not suddenly been conjured up; it is based on what we believe the courts would do.
Lord Pannick
I am grateful to the noble and learned Lord. The difficulty with that is that the Strasbourg jurisprudence recognises that although of course little weight should be given to these factors in many cases, there will be other cases where considerable weight should be given to these factors in the individual circumstances. They may be unusual or rare cases but the Strasbourg court is not saying that it is a rule that in every case involving family or private life, little weight shall be given to these factors. The difficulty about Clause 14 is that it purports to suggest that little weight must always be given to these factors, whatever the circumstances of the case. It does not say “other than in exceptional circumstances” or “normally”; it says that little weight shall be given to these factors. If the Minister wishes to come back on Report with an amendment that recognises a degree of judicial discretion, I shall be delighted to welcome it but that is what Clause 14 says at the moment.
The difficulty that the Minister faces is that he must recognise that there will inevitably be cases where a tribunal or a court, looking up at the facts of the case, decides that greater weight should be given to these factors. If I understood him correctly, the Minister accepted that if the court or tribunal decides in applying Article 8 that more than little weight is required to be given to these factors, then Article 8 must prevail. So Clause 14 is simply illogical and self-contradictory. It does not even achieve what the Minister says it is designed to achieve.
In introducing this group of amendments, I said that the Joint Committee on Human Rights had been unable to identify any precedent for legislation telling the courts what weight to give to relevant factors. I do not think that the Minister or indeed the noble and learned, Lord Brown of Eaton-under-Heywood, with their combined expertise and experience, have pointed to any precedent upon which Clause 14 should be based. I think that this is a constitutional novelty, and we will be creating a very unfortunate precedent by telling the courts what weight to give to relevant factors, when that must depend on all the circumstances of the case.
I am sure that we will be returning to this topic on Report. I ask the Minister to reflect on this matter and to see whether it is possible to meet the concern that has been expressed today, without doing any violence to the object of Clause 14, by putting in some wording that recognises in the Bill the retention of judicial discretion in this matter. For the moment, though, I beg leave to withdraw the amendment.
Lord Rosser
Some very interesting points have been made in support of this amendment. We await with interest the Government’s response; namely, whether they think the issues mentioned in this amendment should be taken into account and, if not, why they are saying that they should not be or, alternatively, whether they will say that there is no need for this amendment because they would expect these matters to be taken into account anyway. We await with interest to hear the Government’s stance.
Lord Wallace of Tankerness
My Lords, I appreciate the concerns raised by my noble friends Lady Hamwee and Lord Teverson in bringing forward this amendment about the impact of the new family Immigration Rules and, in particular, about the impact of the minimum income threshold for sponsoring a non-EEA national partner and dependent children which was established by those rules. My noble friend Lady Hamwee indicated that we had discussed these matters, and I recognise that she chaired the All-Party Parliamentary Group on Migration’s inquiry into the issue, which was referred to by the noble Baroness, Lady Lister, and which reported in June last year.
I acknowledge the point made by the noble Earl, Lord Listowel. Of course we very much welcome those who have settled here and shown great enterprise. That applies to a considerable number of people. Their contribution is very welcome and not only enriches the community financially but enriches the diversity of different cultures and backgrounds in the community.
The new family rules implemented on 9 July 2012 seek to prevent burdens on the taxpayer and promote integration, in particular by introducing a minimum income threshold of £18,600 a year to be met by those wishing to sponsor a partner to settle in the United Kingdom, with higher amounts for sponsoring dependent children.
The level of the income threshold was set in the light of expert advice from the independent Migration Advisory Committee. The levels of income required are those at which a couple, once settled in the UK and taking into account any children, generally cannot access income-related benefits. The policy is also intended to ensure that family migrants are well enough supported to promote their integration into British society. The Government consider this to be a fair and appropriate basis for family migration that is right for migrants, local communities and our country as a whole.
A couple with an income equivalent to the national minimum wage can still access income-related benefits and tax credits. An income threshold set at that level would not be sufficient to prevent burdens on the taxpayer arising once the migrant partner had settled and could access welfare benefits. It would also not provide an adequate basis for supporting the integration of the migrant partner into British society.
Adjusting the income threshold to take account of a sponsor’s consumption of public services and the contribution they make to reducing pressure on those services, including by acting as a carer, would require a complex calculation and numerous assumptions. Such an approach would be more appropriate with an income threshold benchmarked to a sponsor’s net fiscal contribution which, based on the Migration Advisory Committee’s report, would be £25,700. This is based on mean household income and represents, in broad terms, the point at which a sponsor becomes a net fiscal contributor: someone who is paying into the public finances more than they are taking out.
We have built significant flexibility into the operation of the income threshold, allowing for different employment and non-employment income sources to be used, as well as significant cash savings. In recognition of their reduced earning capacity, an applicant whose sponsor has caring responsibilities and is in receipt of carer’s allowance is exempt from the income threshold. So, too, is an applicant whose sponsor is in receipt of a specified disability-related benefit. Instead, these applicants have to meet the previous requirement for adequate maintenance.
Employment overseas is no guarantee of finding work in the UK, and the previous and prospective earnings of the migrant partner are not taken into account in determining whether the threshold is met. If the migrant partner has a job offer in the UK which meets our labour market requirements for skilled workers, they can apply under tier 2 of the points-based system. The rules allow a British sponsor who has been working overseas and is returning to the UK with the applicant to work here to count their overseas earnings and a firm job offer in the UK. This means they can sponsor their family to come to the UK without being separated from them while they take up employment here. We also allow a migrant who is already in the UK and working here legally to count their earnings towards meeting the income threshold.
The minimum income threshold of £18,600 applies to those seeking to sponsor the settlement of a non-EEA national partner. It does not apply to those seeking to settle in the UK as the parent of a British citizen child or a child settled in the UK or as an adult dependent relative. Instead, these family members must show that they can meet the adequate maintenance requirement.
This amendment would apply to all applicants for leave to enter or remain, thereby imposing a stricter financial requirement than at present on other family members applying to settle in the UK. The amendment would undermine the maintenance requirements under the points-based system for students and skilled workers who are required to meet rules on maintenance that are relevant to their route. The amendment would also be contrary to the Clause 14 provision that it is in the public interest, and in particular in the interests of the UK’s economic well-being, that persons who seek to enter or remain in the UK are financially independent.
I know that my noble friend said that she did not expect any change tonight, given that there are certain legal cases; certainly, when I discussed this yesterday, the case was still in the Court of Appeal. I recognise what she says, but I hope that she realises that the effect of her amendment could, in some cases, disadvantage some people; there are particular provisions on carers to which I have referred. I hope that, in these circumstances, my noble friend will agree to withdraw her amendment.