Lord Hope of Craighead (CB)
My Lords, I want to add just a word or two with reference to Amendment 16, in the name of the noble Lord, Lord Watson of Invergowrie, which would insert a new provision dealing with “the best interests of children”. In supplement to what he said, the Supreme Court has paid a lot of attention over the four years of its existence to the UN Convention on the Rights of the Child, to which this country is a signatory. Almost at every opportunity where the issue has arisen, it has stressed the need to promote the best interests of children in dealing with immigration issues, so the point is of some general importance.
The point I wish to draw to the Minister’s attention concerns proposed new Section 117A(2), inserted by Clause 18, which contains the phrase:
“In considering the public interest question, the court or tribunal must … have regard”—
to the provisions that follow. Those words remind one of the words in Section 2 of the Human Rights Act 1998. The noble and learned Lord may recall that there is some debate going on as to the extent to which the courts in this country must feel themselves bound by decisions of the Strasbourg court or whether in performing the Section 2 duty of having regard to—I think the wording of the Act is “take into account”—they can rate what they see and weigh it up but not necessarily feel themselves bound to follow it. The question is: which of these two alternative lines is the Minister contemplating by the use of the phrase “must have regard to”? Is this something that is in the form of a duty, which gives no leeway to the court and therefore it must follow the language precisely as it finds it in the succeeding subsections, or is it, as some people would say about the Strasbourg court, that one can see what is said but there is room for manoeuvre at the same time?
The noble Lord, Lord Watson, explained the point very clearly. When one is considering any public interest considerations that involve children, one will have regard to the existing jurisprudence, the convention rights and so on. The fact that children are not mentioned expressly, except in the very helpful new clause coming in via Amendment 58, does not mean that the court cannot have regard to their best interests. If the Minister would confirm that, that would be extremely helpful, given the nature of the language in proposed new Section 117A(2).
As I hope the noble and learned Lord will appreciate, there will be some read-across from the way the jurisprudence has developed with reference to the Human Rights Act to how one starts the whole exercise that this new clause is dealing with. It is really very important to be clear about how one approaches the entire package in understanding the various criticisms that have been made.
The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD)
My Lords, first, I thank not only the noble Earl, Lord Sandwich, but others who have spoken to amendments in this group, because it is of considerable importance that in dealing with these important immigration matters, the interests of children are kept very much in our minds and that we give proper consideration to them.
The noble Earl, Lord Sandwich, raised a point about the withdrawal of assisted voluntary return for immigration detainees. In the short time since he spoke, the information I have received is that the Government prefer illegal migrants to depart voluntarily and go to considerable effort to help them to do so. Those who refuse to go voluntarily may well have to be detained and have removal enforced. Until 31 March, detainees could apply for an assisted voluntary return package. However, the evidence was that that increased delays and costs. I do not think that anyone believes that it is in anyone’s interest to have a drawn out removal process. I confirm that there remains the opportunity to depart voluntarily with assistance, but those who do not co-operate will not fall within that and will be removed. I appreciate that that is perhaps a sketchy answer, but I think that the best thing is to give further chapter and verse by writing to the noble Earl to explain in more detail precisely what are the policy considerations that have led to that provision.
The amendments raise important issues about the best interests of children and the proportionality of decisions under the qualified right to respect for private and family life under Article 8 of the European Convention on Human Rights. I turn first to the amendment in the name of the noble Earl, Lord Sandwich. It is right that the best interests of the child in the United Kingdom should be a primary consideration in the certification process. The noble Earl, Lord Listowel, asked me to confirm that. There will no doubt be cases in which deportation appeals are not certified because of the risk that serious irreversible harm may be caused to a child, but the amendment would make the best interests of the child a trump card over any other consideration, including the strong public interest in seeing foreign criminals deported quickly. Under the amendment, a foreign criminal or deportee would be able to use a child who may have been in the UK for a matter of only days or weeks—there is no definition of a qualifying child—to avoid certification of their appeal and an early departure from the United Kingdom.
The noble Earl asked about parents who will be deported before appeal. The test will be whether serious irreversible harm is likely to result from a temporary separation, pending an appeal on the particular facts of the case. The best interests of children in the United Kingdom will, as I said, be a primary consideration. The courts have reflected that in many cases. It is a primary consideration—not the overriding, trump-all-else consideration, but a primary consideration which they are obliged to take into account. That will be taken into account in the decision whether to certify as well as in making the original decision.
The other effect of the noble Earl’s amendment would be to rely on the presence of the child, even if the parent—the person subject to deportation—did not care for the child or had no relationship with the child. We do not think that that can be right. The certification power will be used only where an individual’s own conduct, such as criminality, leads the Secretary of State to consider that their presence is not conducive to the public good. The power is tightly defined to ensure that only those who have caused or are trying to cause us harm are deported from the country quickly. Its operation should not be impaired by the impact of the amendment.
I turn to Amendments 16 and 18, spoken to by the noble Lord, Lord Watson of Invergowrie. I readily understand the concerns that he raised about the best interests of children affected by immigration decisions. Amendment 16, to which the noble and learned Lord, Lord Hope of Craighead, also referred, would insert the words:
“The promotion of the best interests of children”,
as a public interest consideration applicable in all cases. I appreciate what lies behind the amendment and welcome the opportunity to reconfirm to the House how the best interests of children are and will remain a primary consideration in all cases concerning the ECHR Article 8 right to respect for private and family life. I believe that the Bill is consistent with our obligations towards children under the United Nations Convention on the Rights of the Child and Section 55 of the Borders, Citizenship and Immigration Act 2009, usually referred to as the children duty. These provisions, as interpreted in particular by the Supreme Court in ZH (Tanzania), establish the best interests of a child in the UK as a primary consideration in considering proportionality under Article 8. This means that the Secretary of State must have regard to the best interests of the child as a primary consideration and ask whether any other considerations outweigh it. Clause 18 is compatible with these obligations and has been designed to take proper account of children’s best interests. It does not require the statement added by Amendment 16, which would also expand the extent of the consideration required by Section 55 to include children outside the United Kingdom.
Lord Wallace of Tankerness
My Lords, I thank the noble Lord, Lord Pannick, the noble and learned Lord, Lord Hope of Craighead, and the noble Baroness, Lady Lister of Burtersett, for giving us an opportunity to revisit Clause 18.
I do not propose to repeat what I said on the previous group of amendments—which I think has been acknowledged by the noble and learned Lord, Lord Hope—as to why the Government came to the position that they did and thought that it was better in the circumstances to include these rules in the Bill. I say to the noble Baroness, Lady Lister, that I do not believe that this is a trespass into the judicial function. As I indicated earlier, I think that one of the things that have to be taken into account, given that Article 8 rights are not absolute rights, is the public interest. It is appropriate and proper that Parliament determines what the public interest is. That is what we seek to do in Clause 18. Thereafter, it is quite properly the function of the courts to apply the law, having considered all the circumstances.
In moving his amendment, the noble Lord, Lord Pannick, said that this debate had a narrow focus, unlike the earlier debate that we had in Committee. Amendments 17 and 18 propose to qualify, by inserting the word “normally”, the provisions in Clause 18 that little weight—in terms of the public interest—should be given to private life, or to family life with a British or settled partner, which was formed when the person was in the United Kingdom unlawfully, or to private life formed with precarious immigration status.
In a similar vein, Amendment 19 proposes to qualify the provision made by Clause 18 for the public interest in the deportation of a foreign criminal who has not been sentenced to imprisonment of four years or more, and who seeks to prevent their deportation by relying on their private life, on their family life with a British or settled partner, or on their parental relationship with a British child or a foreign child who has been resident in the UK for seven years or more.
These amendments are not required to ensure that Clause 18 is compatible with our obligations under the European convention, or to ensure that it properly reflects judicial discretion in determining proportionality under Article 8 in individual cases. It will remain a matter for the courts to consider—not just “normally” but in every case—whether the interference in the individual’s right to respect for private and family life is justified by the relevant public interest considerations. However, the Strasbourg court has made it clear that the European Convention on Human Rights does not guarantee families a right to reside in a particular country, and has consistently recognised that the Executive enjoy a significant margin of appreciation in determining how most appropriately to control immigration.
Clause 18 seeks to reflect Strasbourg case law, which has consistently said that little weight should be placed on private or family life formed during a time when a person’s immigration status is precarious—for example, in the case of Rodrigues da Silva and Hoogkamer v the Netherlands. I fully appreciate the point made by the noble and learned Lord, Lord Hope, that flexibility might be lost when measures are put into primary legislation, although I am not saying that it is a straitjacket. Indeed, one of the considerations that the Government had to weigh up when the decision was taken that it was better to put these matters into primary legislation was that it does not have the same flexibility as rules, given what had been said in the Upper Tribunal regarding matters which were otherwise found in the Immigration Rules. No doubt successors in office will have to keep an eye on Strasbourg jurisprudence. I recognise that it is more difficult to amend primary legislation due to the nature of the parliamentary timetable. Nevertheless, we thought that it was better to do what we did. As I indicated, what we believe we are doing with regard to the reference to “little weight” is to reflect current Strasbourg case law.
Those who enter the United Kingdom for a temporary purpose, such as work or study, can have no automatic expectation of being allowed to settle here. Any private life they develop must be seen in the context of the expectation of their returning to their country of origin. Those who form private or family life while in the United Kingdom unlawfully can have less expectation of being allowed to stay here, and still less those who commit such serious criminal offences that they fall to be deported from the United Kingdom.
As was mentioned in the speeches, the amendments reflect a concern that, if little weight is given to family or private life in these circumstances, a claim under Article 8 can never succeed. That is not the case. The fact that a private or family life has been established should be given little weight, consistent with the case law, but that does not mean no weight is given to that private or family life.
Where there are other factors to be put in the balance—such as the presence of children, disability of the partner, contribution to the community or the fact a young adult has spent over half their life in the UK and has no ties with their country of birth—these factors will all need to be weighed in the balance to decide whether it would be disproportionate to remove the person from the United Kingdom. The need to have regard to these other factors is reflected in the current family and private life Immigration Rules. The case law and Home Office guidance also make it clear that there may be other exceptional factors that need to be taken into account to ensure the decision is compatible with the European Convention on Human Rights.
The addition of the word “normally” is therefore unnecessary, if the aim is to ensure that other relevant factors can be taken into account. It is unhelpful in that it gives no indication of the circumstances when little weight should not be given: in other words, what would be the abnormal case? It is potentially more restrictive, and arguably even incompatible with the European convention, if the implication is that normally these additional factors will not be taken into account. In fact, they should always be taken into account.
I agree with the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Hope, that where little weight should be given to family or private life, that does not mean no weight. In response to the specific points made by the noble Lord, Lord Pannick, I confirm that there may well be compassionate or exceptional cases where Article 8 requires weight to be given to these or other factors or Article 8 requires no deportation. I confirm that the courts must continue to apply Article 8 under the Human Rights Act and that Clause 18 does not override the dicta of the late Lord Bingham, in EB Kosovo, as to the appellate function of the courts in deciding cases under Article 8. Clause 18 enables other circumstances to be taken into account. The insertion of “normally” is neither necessary nor desirable to achieve that outcome.
The noble Lord, Lord Pannick, referred to AP Herbert’s “Misleading Cases”. I well remember the series which starred Roy Dotrice, with Alastair Sim on the Bench. Looking back, it is quite possible that that is where I started in the career I eventually pursued. It was a fantastic series, well worthy of a repeat. This is not a misleading clause. It sets out what the public interest requires but it does not detract from the need for the courts to decide what Article 8 requires in a particular case. I hope that, with these reassurances, the noble Lord will agree to withdraw the amendment.
Lord Pannick
I am grateful to the noble and learned Lord, Lord Hope of Craighead, and the noble Baroness, Lady Lister, for their support and to the noble and learned Lord the Minister, in particular, for giving the assurances I sought. I am still concerned that there remains a conflict between what I see as the absolutist language of the clause and the flexibility which the noble and learned Lord recognises that Article 8 requires by reference to the circumstances of individual cases. I fear that this clause will cause confusion and it will foster litigation. However I beg leave to withdraw the amendment.
Baroness Lister of Burtersett
On the principle that a stopped clock is right twice a day, I will speak again so that the annunciator is right. I supported this amendment in Committee and want to support it again. In fact, it is very timely because the UN special rapporteur on violence against women, its causes and consequences is currently on a mission in the UK and gives oral evidence to the Joint Committee on Human Rights tomorrow. In her preliminary aide memoire, she refers to four particular issues of interest. One is violence in the family and another is what she calls violence in the transnational sphere—that is, violence encountered by women facing new vulnerabilities as a result of increased transnational processes, such as immigrant women, asylum seekers and refugees. Women in that group are very vulnerable if they are in a situation of domestic violence. To their credit, the Government have taken domestic violence very seriously. I hope that we can have a slightly more positive response to the amendment than we did in Committee.
The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con)
My Lords, first I must offer the noble Baroness, Lady Smith, an apology because I do not think I wrote to her on this issue. She has not missed the letter; I missed writing to her. I am sorry about that. I will make sure that I write to her after this debate because there are extensive arguments. I want to keep the argument fairly focused for this evening.
I will start with a generality. The noble Baroness, Lady Lister, was kind to say that the Government take this issue seriously. We do indeed. Only last Thursday, I was able to respond to a supplementary question from the noble Baroness, Lady Howarth of Breckland, about a report on the way that police forces deal with domestic violence. I said that the Home Secretary is committed to tackling this scourge. She has made it clear that she expects speedy action to implement the recommendations of that report.
Having said that, it does not necessarily mean that individuals who have been the victims of domestic violence should expect to be able to remain in the UK where their migration status would not otherwise permit them to do so. While I run the risk of repeating myself from last time and being quoted back yet again, as we have discussed previously there is provision in the Immigration Rules to grant indefinite leave to remain to victims of domestic violence who came to the UK intending to make a permanent life here as the partner of someone who is already a permanent resident or who, in the case of the partner of a member of Her Majesty’s forces, is prevented from applying for permanent residence during the period of service. That just reiterates the position of that particular group of people.
However, the position is different for individuals who are in the UK because of a relationship with someone who does not have the right of permanent residence. Those individuals should not have any expectation of remaining in the UK outside that relationship, regardless of the reasons for that relationship breaking down. To grant leave to an individual who is in the UK as someone’s partner but who is not settled here on a basis other than the ongoing partnership would suggest that his or her right to be in the UK was independent of that partnership, which is not the position. It would not be helpful to encourage anyone to think otherwise or, by the grant of a specific period of leave, to give false hope that they might be able to stay. However, we take a pragmatic and practical view in these cases. If a migrant no longer meets the requirements of their leave because a relationship with a spouse or partner has broken down, discretion may be used so that, rather than curtailing leave with immediate effect, the Secretary of State may curtail that leave—if I may use the word “normally”—normally to a period of 60 days. This would allow the migrant time to make arrangements to depart the UK voluntarily without being here illegally, or to submit an application to remain in the UK on another basis. That is a relevant consideration, which I hope noble Lords will understand.
The Government consider that it is fair, reasonable and proportionate to distinguish between those whose partner is here permanently and those whose partner is here temporarily and may never become a permanent resident. I acknowledge that this is a difficult area but I think that noble Lords will understand the difficulties of extending rights in this area. I consider the position that I have outlined is the right one. As I have said, I certainly will write to the noble Baroness, with a copy to noble Lords, and will place a copy in the Library. I appreciate that this is an important issue to get right. None of what I have said dilutes our determination that we should pursue the issue of domestic violence, which ruins lives and is never acceptable. I hope that the noble Baroness understands our position and will withdraw her amendment.
Baroness Smith of Basildon
My Lords, I am grateful to the noble Lord for that response, although I am not sure that I understand his position. I wish that I had received a letter. With the benefit of a letter addressing the points that he has made, perhaps my amendment and the points raised in the debate would have been different. He seemed to be saying that no action should be taken. He referred to granting indefinite leave to remain, which is not what we are suggesting. All we are suggesting is a breathing space for someone to make arrangements. However, he went on to imply that perhaps a breathing space may be granted, although I am not sure of the circumstances in which that would be granted.
At one point I thought that the Minister’s reply seemed rather insensitive and unhelpful, but then it seemed that he was being more helpful. I am really not clear about the process. I would be grateful if the Minister would write to me and I could reflect on that. I know that it would not be usual to bring this back at Third Reading but, given that I did not have the response in order to address the points on Report that I would have addressed otherwise, I hope that he will be understanding and that we can discuss this issue further. At this stage, I beg leave to withdraw the amendment but I would like to return to the issue with the noble Lord, given his somewhat contradictory answer.
Lord Taylor of Holbeach
Of course, I am very happy to talk to the noble Baroness about the detail of this. I mentioned that the Secretary of State considers these cases and normally there is a 60-day period to get the individual’s status sorted out. We appreciate that this is not easy for individuals to cope with. I think that 90 days was mentioned by the noble Baroness, Lady Lister, and also by the noble Baroness, Lady Smith. But in practice, 60 days is within the Secretary of State’s discretion.
I will write with fuller detail. I hope that we will have a chance to talk about this before we get to Third Reading.