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The Committee divided: - Ayes: 3 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 3 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 3 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 8 / Noes: 4 - Question accordingly agreed to.
The Committee divided: - Ayes: 3 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 3 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 3 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 11 / Noes: 1 - Question accordingly agreed to.
The Chair
I remind the Committee that with this we are discussing the following:
Government amendment 131.
Amendment 94, in clause 17, page 14, line 8, at end insert
“, provided that the Secretary of State may only designate a place by regulations made by statutory instrument and that such a statutory instrument may only be made if a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.”
This amendment would require the place at which sponsor human rights claims may be made to be set by regulations subject to the affirmative procedure.
Government amendment 96.
Amendment 97, in clause 17, page 15, line 4, at end insert—
“(8) In section 82 (right of appeal to the Tribunal), after subsection (1) insert—
“(1ZA) An appeal does not lie under subsection (1)(b) against a decision to refuse a sponsor human rights claim unless the family member to whom the claim relates would, if they lived with the person who made the claim, be a member of that person’s core cohabiting family within the meaning of section 117AA(2).””
This amendment would confine the new sponsor right of appeal to claims relating to a spouse, civil partner, partner or minor child (or, for a child sponsor, a parent), in line with the Government’s own definition of the core cohabiting family in clause 18.
Clause stand part.
Amendment 130 agreed to.
Amendment made: 131, in clause 17, page 13, line 33, leave out paragraph (b).—(Anna Turley.)
See the explanatory statement for amendment 130.
Amendment proposed: 94, in clause 17, page 14, line 8, at end insert
“, provided that the Secretary of State may only designate a place by regulations made by statutory instrument and that such a statutory instrument may only be made if a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.”—(Blake Stephenson.)
This amendment would require the place at which sponsor human rights claims may be made to be set by regulations subject to the affirmative procedure.
Question put, That the amendment be made.
Blake Stephenson (Mid Bedfordshire) (Con)
I beg to move amendment 98, in clause 18, page 15, line 14, leave out from “must” to end of line 15 and insert
“must determine that question in accordance with section 117AA.”
This amendment would require courts and tribunals to decide whether Article 8 is engaged in accordance with new section 117AA, rather than only to have regard to it.
The Chair
With this it will be convenient to discuss the following:
Amendment 99, in clause 18, page 15, line 21, leave out “normally”.
This amendment, with Amendments 101 and 102, would remove the word “normally” from new section 117AA so that family life for the purposes of Article 8 is limited to the core cohabiting family and the other relationships specified, without an open-ended qualification.
Amendment 100, in clause 18, page 15, line 25, at end insert
“(but only where A and the partner have lived together in a relationship akin to marriage or civil partnership for at least two years)”.
This amendment would require a partner who is not a spouse or civil partner to have lived with the person in a relationship akin to marriage or civil partnership for at least two years to count as part of the core cohabiting family.
Government amendment 44.
Amendment 101, in clause 18, page 15, line 30, leave out “normally”.
This amendment is consequential on Amendment 99.
Government amendment 45.
Amendment 102, in clause 18, page 15, line 33, leave out “normally”.
This amendment is consequential on Amendment 99.
Amendment 103, in clause 18, page 16, line 17, leave out subsection (6).
This amendment would remove the provision allowing the factors excluded by new section 117AA(5) to be considered at the public interest stage, to test whether subsection (6) undoes the effect of subsection (5).
Clause stand part.
Blake Stephenson
It is a pleasure to serve under your chairmanship, Mr Twigg.
Clause 18 is at the heart of part 2 of the Bill, and is where the Government set out for the first time in statute, as we heard earlier, what counts as family life for the purposes of article 8 of the European convention on human rights. Other than the fact that the Conservatives would withdraw from the ECHR to implement our borders plan, allow me to say at the outset that the Opposition do support the broad direction of travel of the clause. The public are entitled to expect that the right to respect for family life protects genuine, close family relationships and does not stretch to cover extended relationships and loosely evidenced dependency, which is the very problem that the Government’s explanatory notes identify. In my opinion, the question for the Committee is not whether the clause points the right way; it is whether it will make any difference at all in the courtroom. On the evidence the Committee has heard and read so far, I fear the answer is unfortunately that it will make very little difference.
Clause 18 does three things. First, subsection (3) inserts a two-stage sequence into section 117A of the Nationality, Immigration and Asylum Act 2002. A court or tribunal must first decide whether article 8 is engaged at all, having regard in particular to proposed new section 117AA, and only then turn to the public interest question. Secondly, clause 18(4) inserts proposed new section 117AA into the 2002 Act. A person’s family life is normally limited to their core cohabiting family: a spouse, civil partner or partner and minor children or parents, to the extent that they live together. A parent who does not live with a child does not normally have family life with that child unless there is evidence of a genuine and subsisting parental relationship, and an adult does not normally have family life with another adult unless they live together as partners or there is an additional element of dependency beyond normal emotional ties.
Thirdly, clause 18(5) lists four things that, on their own, do not amount to that additional dependency: financial dependence; illness, unless it meets a three-part test of constant care; emotional resilience; and concern for a relative living in a country affected by war or instability. Subsection (6) then provides that nothing in subsection (5) stops the court considering those same factors when it comes to the public interest question.
Why is the direction right? There is a real problem here. Mr Smith, the former director general of Border Force, told the Committee that article 8 is
“often used as a lever quite late in the process”,––[Official Report, Immigration and Asylum Public Bill Committee, 15 September 2026; c. 44, Q67.]
as we all know from the cases we hear about on the news.
The Minister gave the Committee an example from Home Office casework of a man who falsely claimed paternity of eight children and was sentenced to six years’ imprisonment. Families, of course, take many forms, and nobody on this side of the Committee wishes to deny that. However, the law should be clear that the core of family life is the family that lives together, and that anything beyond it must be proved. We support the principle of the clause, but we have been here before—I refer to the debate on clauses in group 14 and the many good speeches made—with the immigration rules in 2012 and the Immigration Act 2014. I want to test whether this clause will succeed where those attempts did not.
First, on the language, proposed new section 117AA to the 2002 Act does not say that family life is limited to the core cohabiting family; it says that it is “normally” limited to it. The same word appears in subsections (3) and (4). Professor Ekins told us that this word is where the litigation will end up turning. Justice, which opposes this part of the Bill, makes the same point from the other side: its written evidence accepts that the use of “normally”, together with the need only to “have regard” to those considerations,
“preserves the possibility of finding family life beyond these prescribed circumstances.”
I ask the Minister: in what circumstances do the Government expect a court to find family life outside the core cohabiting family, and will that be set out anywhere? If the Government cannot say, why is the word “normally” there at all? Amendments 99, 101 and 102 would remove it.
Secondly, let us look at the duty itself. Proposed new subsection (1B) to section 117A says that the court
“must (in particular) have regard to”
section 117AA. It does not say that the court must apply it—that matters. In Rhuppiah, a case mentioned in the previous sitting, the Supreme Court held that the “have regard” formula in the 2014 Act
“cannot put decision-makers in a strait-jacket”.
As was mentioned earlier, Chris Rowe of Swansea University, writing for the UK Constitutional Law Association, described the device as “insufficiently potent” to force a result incompatible with the convention. Clause 18 uses exactly the same device. What in proposed new subsections (1A) to (1C) to section 117A differs in kind from the formula that the Supreme Court has already held cannot bind? Amendment 98 would replace “have regard to” with a requirement that the court determine the question in accordance with proposed new section 117AA.
Proposed new section 117AA(5) tells the court that financial dependence, illness, emotional reliance and concern for a relative in a war zone do not, on their own, create family life. Subsection (6) tells the court that it may consider every one of those factors when it weighs the public interest. The Immigration Law Practitioners’ Association adds that the Bill is silent on whether those factors may be combined when the court decides whether there is an additional element of dependency, and that the Strasbourg court, in Kumari and Martinez Alvarado, allows exactly that. If the court reads a combination test into paragraph (4)(b) to keep the clause compatible, the list in subsection (5) will do very little work. What is subsection (6) for, if not to give back at the second stage what subsection (5) takes away at the first? Amendment 103 would leave it out, to test exactly that.
The central question is whether clause 18 changes the law. The Government’s human rights memorandum says that proposed new section 117AA codifies the Strasbourg principles on the existence of family life. The House of Commons Library notes that the Strasbourg court has itself said, in Kumari v. the Netherlands, that family life is
“normally limited to the core family”,
and it records Professor Singer’s view on the clause’s effect, that
“it is unclear how this would differ significantly from current practice”.
However, the Law Society tells this Committee that the new emphasis on cohabitation is
“a significant move away from the current position in UK law and a substantial narrowing of Article 8 protections.”
Justice says the clause
“falls short of codifying the Strasbourg principles on the existence of family life, despite the Government’s assertion to the contrary in its ECHR memorandum”,
in particular for
“young adults who are still living with their parents”.
Ben Goldsborough
As the hon. Member very kindly name-checked my speech yesterday, I need to thank him first of all. He says there is no issue of “Lock, Stock and Two Smoking Barrels” when leaving the ECHR, but there is an issue concerning our colleagues and friends on the island of Ireland. What would be the result of leaving the ECHR when it comes to the Good Friday agreement? There is no question about it: Lord Wolfson may say that there may or may not be an issue with that, but the Irish Human Rights and Equality Commission has noted that there would be an issue, and we have the history as well. Anything that comes back with this idea that, “Well, Australia and New Zealand don’t operate within these systems,” does not take into account the history of the island of Ireland.
Blake Stephenson
I thank the hon. Member for his intervention—perhaps my hon. Friend the Member for Isle of Wight East was correct to say that I was far too generous in taking it; I should have just closed my speech.
The hon. Member for South Norfolk clearly recognises that the Opposition commissioned Lord Wolfson to conduct a very serious legal analysis of the benefits or otherwise of leaving the ECHR, which he has done. I go back to the comment I made earlier about how there are no legal barriers to us departing the ECHR. There is no risk to the Union and there is no risk to the Good Friday agreement in a legal sense. It will, of course, result in a political discussion, and that will be had at the appropriate time, but the political questions that will arise are not insurmountable.
I will now close. The Opposition support the aim of clause 18 and will not oppose it standing part of the Bill. We support Government amendments 44 and 45, but a definition that is qualified by “normally” applied through a duty only to “have regard to”, with the excluded factors let back in by clause 18(6), is a definition that the courts can step around. I will seek to press amendments 98 and 99 to a Division.
Siân Berry (Brighton Pavilion) (Green)
It is a pleasure to have you in the Chair today, Mr Twigg.
I take completely the opposite position from the hon. Member for Mid Bedfordshire in almost every respect. I am going to speak against clause 18 and its inclusion in the Bill, and I am going to oppose the Government amendments that would put further tests on parent-child relationships and parental involvement for refugees. I will also be opposing the Conservative amendments, which would put even tighter constraints on family life.
I am here to defend our article 8 protections—I say “our”, because I believe it is really important that we set laws for refugees and asylum seekers that we would happily be subject to ourselves. That is absolutely at the core of the universal nature of human rights and the international agreements we have made to respect human rights around the world in the way that we would want them to be respected should we be in the horrible position of needing to claim asylum.
Article 8 protects the right to family life specifically for us under the European convention on human rights. Although it is not absolute, it requires any state interference in these rights to be lawful, necessary and proportionate. I do not agree with the Government when they say in their human rights memorandum that they are taking
“proportionate means of achieving the legitimate aims.”
To me, paragraph 26 in the memorandum clearly admits that there is interference in our rights with this legislation. The Government are using the argument that they are taking “proportionate means” of “achieving the legitimate aims”, but the legitimate aims they lay out are:
“maintaining effective immigration control, economic wellbeing and the prevention of disorder or crime.”
I honestly do not see how clause 18, on family life and people making claims for reuniting their families and maintaining this essential human right protected under article 8, comes into those “proportionate means”. It is about reducing the ability of families to reunite. The impact assessment clearly says that many thousands of people who would be able to come here under current laws will be denied their claims. This is a reduction in human rights and it seriously needs looking at. I am neither equipped nor planning to add further arguments relating to Northern Ireland and the Windsor framework, but further conversations are needed about what is currently in the Bill, never mind what would happen if we withdrew from the ECHR.
Everybody on the Committee wants a fair, robust and effective immigration system—one that works and upholds the rule of law and on in which people have confidence. Article 8 is not an abstract concept within all this; it is the law that decides whether a parent can stay in the country where their children live or whether a British child grows up with both parents. We do not want to see families separated or children separated from the parents who care for them, yet that is precisely the risk posed by clause 18, according to the Government’s own impact assessment.
Dr Zubir Ahmed (Glasgow South West) (Lab)
Does the hon. Lady accept that article 8 was never intended to be interpreted as it is now, and therefore that if we do not provide guidance or adjust it, we will further dampen the British public’s confidence and trust in the immigration and asylum system? I can tell her from personal experience that when that happens, it is people from minority communities that are already here, sometimes for many generations, such as my father, who are first in the firing line. Does she therefore agree that if she, like me, wants Britain to be a compassionate, welcoming country, we must acknowledge that those articles are in some cases not being interpreted in the intended manner and that the adjustment is appropriate?
Siân Berry
I thank the hon. Member for his perspective. He must appreciate through his constituency casework, as I do, the general principle that article 8 claims need to be assessed on an individual basis. The Bill tries to codify and generalise things in ways that reduce the ability for anyone making decisions to look at the genuine family lives of those making the claims. Bad decisions can result from people misunderstanding different cultures, from unconscious biases and from all kinds of things like that. It is really important that we do not try to prescribe family life under state definitions. I will come on to talk more about that and about the toxic rhetoric and the awful anecdotes, such as the examples we have heard from Ministers, which increase the toxicity of the debate. We can do much better than this Bill to reduce that.
Clause 18 would replace the reality of family relationships with statutory presumptions. Families today come in many forms. We have single-parent households, blended families, grandparents raising children, and parents who do not live under the same roof through circumstance rather than choice. A family does not stop being a family because it fails a cohabitation test. I will always stand up against people trying to define what a normal family is. The Government’s stated objective is to confine family life “normally” to the core cohabiting family unit. A parent who does not live with their child must prove that the relationship is genuine and be judged on how often and how recently they have had contact, even where work, shared care or the immigration system itself has kept them apart.
Ben Goldsborough
If we followed the hon. Lady’s line of thinking, my concern is that we would leave section 117B of the Nationality, Immigration and Asylum Act 2002 completely unamended, which would mean that there is no clarity—not just for the state and our constituents, but for those going into the system who may be seeking refuge. Is there not also a moral case? If we leave this be, we will end up in a muddle, which will mean that backlogs continue to grow, people do not get the surety of an answer and the immigration and asylum system will not have the confidence of the public.
Siân Berry
I thank the hon. Member for making those points, but as we spoke about on Second Reading and in earlier debates on this topic, the muddle lies in the bad initial decision making in the Home Office. If it is not clear what kind of evidence people need to establish family life, it should be dealt with through better processes, better information and more support for legal representation. Codifying it, as is done in the Bill, is not the right way to deal with that.
David Smith
I thank the hon. Lady for being so generous with her time. I want to build on the point made by my hon. Friend the Member for South Norfolk. The hon. Lady spoke about the Bill referring to core cohabiting family, but does she accept that there must at some point be a limit on what we define as family? If I were fleeing to another country, would it be reasonable for me to say, “I desperately want my third great uncle on my mum’s side to be part of my family”? Does she accept that there has to be a definition and parameters for what family actually is, which the Bill seeks to establish?
Siân Berry
I disagree wholly with that. During the speeches made by Opposition Members earlier in the debate, I kept thinking about the people who, due to natural disasters or wars, are left without core family, and have to find another family member who will take them in and take that place. There is an inherent danger in putting in place these limits, and in the amendments tabled by Conservative Members that would add rigid definitions. Given the stories about the different ways in which people have experienced refugee status over the years, which all hon. Members will have heard about in casework and read about in memoirs and novels, the need for this change does not ring true. We should keep the system as it is now, where the reality of every single case needs to be looked at.
Blake Stephenson
The hon. Lady described our amendments as “rigid definitions”, but is it not right that we as legislators make sure that our definitions have certainty? We want to have a system that the British public have confidence in, and that is not the case at the moment—in good faith, the Government are trying to deal with that. Do we not need rigid definitions and certainty to achieve that?
Siân Berry
I fundamentally disagree with the hon. Member. We need to look at individual cases individually, as no two families are the same. We could imagine many circumstances for which we would want exceptions to this rule. The Government have rightly left caveats in the Bill, but the Opposition are arguing against them. Putting in rigid criteria on top of what is already in the Bill is absolutely the wrong way to go about addressing the issue. The best way to deal with any problems we might see is to do so in the initial decision making.
Clause 18 says that financial or emotional dependence, illness, or living in a conflict zone alone is not enough to establish family life, yet families routinely support each other financially, emotionally and practically. Ministers say that those factors can still be weighed at the public interest stage, but once family life is ruled out, that stage is never reached. What will that mean in practice? As I have hinted at, the Government’s impact assessment says that their article 8 reforms will mean 14,000 more refusals every year. Even after appeals, around 11,700 people more will be refused each year. Under the law as it stands, those people would succeed. That shows that clause 18 does not simply clarify existing principles, but is intended to change outcomes at a substantial scale. The clause does diminish human rights for refugees in this country, as is admitted in the Government’s human rights memorandum.
The way the clause is doing that is very troubling for two main reasons. First, it suggests that family relationships deserve protection only when they fit a model chosen by the state, but article 8 has never worked that way. The European Court has always looked at the substance of an individual relationship, not its form. Indeed, the very cases the Government cite require an individualised assessment of all the circumstances. As the hon. Member for Mid Bedfordshire said, we have been here before. The examples we are hearing from the Home Secretary and the Minister come as part of what is now a mini-tradition of Home Secretaries using exaggerated anecdotes to add to toxic rhetoric about migrants.
Blake Stephenson
This might be an opportune moment to intervene and allow the hon. Lady to get to the right place in her notes. She mentioned that we have been here before; that was a central part of my speech. In order to break this cycle, would she not agree that the right thing to do is to depart from the ECHR?
Siân Berry
I thank the hon. Member for trying, but he is talking to a person who cannot read the universal declaration of human rights without welling up, and I will never give up making arguments of this sort.
Previous legislation on these matters, to which the hon. Member for Mid Bedfordshire referred, followed on directly from the infamous 2011 party conference speech of the then Home Secretary—now Baroness May of Maidenhead. She repeated false claims from newspapers that judges had permitted a man to escape deportation because he had a pet cat—something she says she did not make up. In reality, neither of the judges’ decisions in the case was based on the man having a pet, and the second and final decision was not based on any human rights consideration at all. It was straightforwardly based on a failure by the Home Office to apply its own policy.
Amnesty International gave us more information in its written evidence:
“This—together with the readiness of many political commentators to cherry pick often minor or irrelevant facts that are mentioned in tribunal or court judgments and present these as if the main or sole reason for a decision that may have little or nothing to do with them—continues to underpin criticism of Article 8 in immigration-related decision-making. That criticism is plainly misinformed, often careless and, in some cases, on its face, clearly ill-intended—including out of dogmatic hostility to the ECHR and other political motivations.”
On Second Reading of the Bill, the current Home Secretary summarised an unnamed case. She said:
“In 2025, an Albanian man jailed for growing cannabis escaped deportation not because he had any right to be here, but because it was deemed unduly harsh on his partner to deport him. She was not his wife or life partner—instead, this relationship began only after a deportation order had been served. Why was the deportation deemed to be unduly harsh? The partner spoke no Albanian and had never visited the country before.”—[Official Report, 13 July 2026; Vol. 789, c. 675.]
Ben Goldsborough
I thank the hon. Lady, who is being very generous with her time. It is important for us to hammer home that, through the Bill, we are passing legislation for all eventualities. I wish that everyone coming here was squeaky clean and had the best intentions in the world, but we have to pass legislation that takes those with bad motivations into account. Will she respond to that?
Siân Berry
Yes, I will respond to that shortly with some data.
To return to the anecdote from the current Home Secretary, Amnesty again corrects the record:
“A key error in this summary is the statement that the relevant relationship had only begun after a deportation order had been served. That is not correct. The judge’s decision makes clear that it began significantly before the order. Of especial relevance was that the notice that such an order might be made was served in December 2019, but no order was then made for more than four years. By the time it was made in January 2024, the relationship had developed over a relatively lengthy period.”
The Home Secretary mentioned the criminal conviction. Amnesty also corrects that information. It says that he was jailed for four months for a relatively minor offence, and was now
“working lawfully and supporting himself.”
It also says:
“There was no suggestion of any risk of reoffending. His partner, who had no connection and had never been to Albania, was working and providing daily support to her sister and mother. Whatever may have been the position in 2019 was clearly not the position in 2024; and the relevant facts were clearly not adequately presented in what had been reported or at Second Reading.”
Melanie Onn (Great Grimsby and Cleethorpes) (Lab)
The hon. Lady says that this is not a way to reform the system. Does she have any ideas about the kinds of reform that she would be ready to accept?
Siân Berry
I have said that, based on my own casework, my experience of the Home Office’s errors, and the cases that I have seen, I would like to see investment in Home Office decision making to make it better in the first place. That would be the best way to deal with this issue, particularly when more than half of appeals are being approved.
Melanie Onn
I thank the hon. Lady for giving way once again. Given the number of amendments she has tabled—the point being that she will not support any element of change whatsoever—I gently and respectfully suggest that she is actually very happy with the system as it is, she is happy to accept all the evidence from a huge industry that exists to support immigrants, migrants, refugees and asylum seekers, and she does not want any reform whatsoever other than throwing the system open even further.
Siân Berry
It is pretty clear that I think the Bill is a result of the Government responding to toxic rhetoric coming from other parties, and that it is an attempt to be seen to be doing something.
Siân Berry
I will finish my point. In an evidence session, we challenged the National Crime Agency on the roots of the organised crime that the hon. Member for Great Grimsby and Cleethorpes mentions, which is doing huge harm. I will not argue that the small boats system is the best way to bring people to this country. Small boat numbers started to grow the moment safe routes were closed. We need safe routes, and that is the approach the Government could take to reduce small boat crossings. The law that protects our rights does not need to be undermined. I would absolutely argue that.
Blake Stephenson
The hon. Lady refers to other parties and their toxic rhetoric. Perhaps she could give some examples. If she wishes to call out those parties, will she do so by giving clear examples rather than by making throwaway comments? That would really help the Committee.
Siân Berry
I am happy to clarify that I am talking primarily about Reform UK. That party is not represented on this Committee and can answer for itself in other ways, but it has, until recently, been taking votes from the Government on the right. I am happy to come back in future sittings with further examples of anecdotes being used instead of evidence. I chose to highlight two examples of Home Secretaries doing that, because the Minister is here to represent a Home Secretary.
Several hon. Members rose—
Siân Berry
This is turning into a very broad debate, but I give way to the hon. Member for Glasgow South West.
Dr Ahmed
It is the hon. Lady’s contention that those of us on the Government Benches were somehow manipulated by others to arrive at this Bill. Will she at least concede that toxic rhetoric and hatred do not occur in a vacuum, as I know personally, but often exploit structural deficiencies in systems, and that sadly there are structural deficiencies in this system? Is fixing them not therefore the responsible thing to do, so that we can turn the tap off that these haters and racists use to fire abusive language at Members of Parliament and members of the public who do not look like them?
The Chair
Order. I have been very lenient, but I gently say that we need to keep interventions sharp and succinct, please.
Siân Berry
Much appreciated, Mr Twigg.
I would say that the best way to stand up to toxic rhetoric is to stand up to it. We are familiar with the concept of the Overton window, and I am distressed that a Labour Government have been moving in this direction through their immigration policies. As I said at the beginning of my speech in the previous debate, the Government ought not to bring forward this Bill or row back on other civil liberties and human rights legislation—that would be the right thing to do. I am a lone voice on this Committee, but that cannot be right when we know that people around the country want migrants to be welcomed and want to see more unity, inclusion and social cohesion. The way to build that is not to hear the argument about how article 8 and the ECHR need to go and then do a little bit of that. The answer is to stand up to the rhetoric and build a better country.
Joe Robertson
I agree with the hon. Lady that there is some toxic rhetoric around this, although not from Members on this Committee. Does she not agree nevertheless that there is a problem with immigration and asylum in this country, and that part of the problem is that the numbers are too high?
Siân Berry
I do not concede that we are taking in too many refugees. As I said at the beginning, we have an international obligation to take our fair share of people seeking asylum, because of all the causes around the world that the hon. Gentleman mentioned earlier—he left out climate change, but I will forgive him that. There are many, many reasons why we ought to take a humane approach to asylum.
Some Government Back Benchers talked earlier about safe routes. There have been good schemes, aimed at particular conflicts in particular countries, and I hope the Government will continue to bring in more such schemes, but it is not good enough to cherry-pick particular conflicts or the kinds of refugees that we find acceptable. The volume of Ukrainian refugees has been absolutely huge, and has not caused social cohesion problems. We can make that work for many other countries as well, but the volumes in other schemes have always been too low. We need a universal framework of law that will work for all kinds of refugees.
David Smith
I was one of the Members who referred earlier in the debate to safe and legal routes, which are a very good idea. May I ask a very simple question: are there any specific restrictions at all that the hon. Lady would like to add to our immigration system?
Siân Berry
Off the top of my head, I cannot think of any. I really think that the current law needs to be administered better, and that we need better decision making, more humanity in all of this, and more support for people to get good decisions made the first time. I would be very happy to receive from the Government any clear evidence of abusive claims under the current law that does not rely on anecdote, but I am absolutely sure that, in clause 18, the Government are seeking to prevent people who would currently succeed from achieving asylum in this country and from being reunited with their families.
Let me move on to more things that the Government have said. The Government tell us that clause 18 is consistent with Strasbourg case law, and they even cite the cases, but, as other hon. Members have mentioned, they cannot have it both ways. If the clause simply restates the law, it is unnecessary. The Government’s impact assessment says that they expect grants to be cut by a third by those reforms. If the clause goes further, it risks putting the country in breach of the convention and inviting years of litigation. Either way, the clause does not deliver the clarity that Ministers promise, and I think that Opposition Members are united on that today.
I believe that a fair immigration system should tackle abuse while protecting genuine family life, and that it should put the best interests of children first and reflect the reality of modern families. Clause 18 does neither. It risks real hardship for genuine families, with little evidence that it will achieve anything else. I urge the Government to think again. We can maintain effective immigration control without using this clause to break up thousands of families. We can protect our borders without sacrificing the fundamental British values of compassion and fairness. For those reasons, I ask the Committee to agree that clause 18 should not stand part of the Bill.
Joe Robertson
It is a pleasure to serve with you in the Chair, Mr Twigg. I will address clause 18. I must confess that I have a slight tendency to stray, but I am comforted by the fact that the hon. Member for Great Grimsby and Cleethorpes will be on it and ensure that I stick to the grouping before us.
I made some comments on clause 18 in the morning sitting, so what I will say now is additional. I will focus on situations in which a right to family life can still be argued under the Bill, even though it seeks to restrict human rights applications based on family life. Those are not situations involving a core cohabiting family, but ones in which a sponsor in the UK who does not necessarily have a UK passport but nevertheless has a right to reside here applies for somebody—not necessarily a family member—who lives elsewhere with no right to come here, has a mental illness, needs the sponsor’s support and cannot find that support at home. That seems to me the widest part of the Bill, allowing a great range of claims to be made and increasing or maintaining the backlog at the Home Office and in the courts.
It seems that this mental illness provision could create a dodgy market of mental health clinics elsewhere in the world, set up specifically to provide paperwork for an application—that is not fanciful. We know the huge pressure from the black market abroad, involving people smugglers and all sorts of behaviour that is not just immoral but illegal and abhorrent, to get people into this country, because of course it is a great place to live and build a life. We know that the pressure is already there; that is why we have such high numbers coming. Setting out in law a mental illness route that seems to have such a low bar for evidence could lead, I think, to an entirely new dodgy avenue opening up.
Let us envisage a very real type of application. Someone in this country says that a family member or close friend living in another part of the world has a mental illness and a certificate to prove it. However, that certificate could very well come from a clinic that does not adhere to the standards of the NHS, the Care Quality Commission or anything that could be recognised in this country. That bit of paperwork—the bottom of which says, by the way, “Sorry, there is no support at home”—could give rise to an application. Without any evidence to the contrary, I do not see how the Home Office—or indeed a court—could deny that application.
Matt Vickers (Stockton West) (Con)
It is a pleasure to serve under your chairmanship, Mr Twigg.
Let us be clear about what clause 18 is actually for. The phrase “family life” has been stretched for years, and now covers almost anything: adult siblings, distant relatives and relationships that seem to spring up the week a removal notice lands on the doormat. The Government say that clause 18 will bring that to an end, and that family life will mean what most people think it means: someone’s husband or wife, partner or children. That is what the public think family life means, and it is what Parliament should say it means.
The trouble is the drafting. Clause 18 sets out a clear definition and then, in three separate places, adds a single word that undoes it. As my hon. Friend the Member for Isle of Wight East rightly set out, that word is “normally”. Proposed new section 117AA says that family life
“is normally limited to their core cohabiting family.”
A parent who does not live with their children does not “normally” have family life with them. One adult does not “normally” have family life with other adult relatives, such as brothers and sisters, unless there is real dependency.
Every immigration lawyer in the country will read the word “normally” the same way. If family life is only “normally” limited, their job is to show that their client is not normal. Every case becomes the exception. We have seen that before: a clear rule, a soft word and 10 years of litigation about what the soft word means. It is not as if the clause lacks a safety valve. Proposed new section 117AA(4)(b) provides for adults with a genuine
“additional element of dependency (beyond normal emotional ties)”.
The Court of Appeal set out that test in Kugathas v. Secretary of State for the Home Department more than 20 years ago, and it is where genuinely exceptional cases belong. “Normally” does not add fairness; it adds a second door.
David Smith
I have a fundamental question. The hon. Gentleman is outlining the word “normally”; if, to his estimation, all asylum lawyers or whoever is involved in the process would look at their individual case and say, “That’s not normal,” surely none of it would be exceptional.
Matt Vickers
We are trying to define something, and I think it is on us to define it. Adding “normally”—inviting them to look for the exception—is very unhelpful, particularly when proposed new section 117AA(4)(b) actually sets out the exception and gives that bandwidth for people to find exceptional cases. To write “normally” beside all these properties is to open a door, and would mean that we fail to do what we are aiming to do. That is the objective of the Bill. Amendments 99, 101 and 102 would take that word out. If the Government believe that their definition is right, let us say what it means.
Amendment 98 tackles the same problem from another angle. Under the clause, a court deciding whether article 8 was engaged must “have regard to” proposed new section 117AA, but having regard to something is not the same as following it. The court can have regard to the definition, nod politely and decide a case on a different basis altogether. Amendment 98 says that the court
“must determine that question in accordance with section 117AA.”
If Parliament is going to define family life, the court should apply that definition, not merely consider it.
Amendment 100 asks a simple question: what is a partner? The clause does not say. The immigration rules have required unmarried couples to have lived together in a relationship akin to marriage for at least two years. Amendment 100 would put that test into statute so that a relationship formed a few weeks before a removal date could not be used to frustrate it. It is good enough for the rules; it is good enough for the Bill.
Moving on to amendment 103, in proposed new section 117AA, subsection (5) says that financial dependency, illness short of needing constant care, emotional reliance or worry about relatives in a warzone do not, on their own, create family life between adults. Fair enough, but subsection (6) then says that nothing in subsection (5) stops a court considering every one of those factors at the public interest stage. Can the Minister explain what subsection (5) achieves if subsection (6) allows the very same factors to tip the balance a few paragraphs later?
I welcome Government amendment 45. It asks decision makers to look at whether contact between a parent and child has only recently been established or re-established. That goes to a real problem: relationships that come to life only when removal is on the cards. By tabling it, the Government make our point for us. If it is right to be sceptical of a parental relationship that appears just in time, it is right to be sceptical of a partnership that does the same. That is all amendment 100 asks. Clause 18 is a good idea let down by its drafting. The Government have written a definition and then handed every lawyer in the land the words to argue their way around it. Our amendment would make that definition stick.
If the Minister cannot accept our amendments, I hope that the Government will reflect before Report. I commend the amendments to the Committee.
The Minister for Border Security and Asylum (Anna Turley)
It is a pleasure to serve under your chairmanship, Mr Twigg. I thank hon. Members for their contributions this afternoon. It has been fascinating to have one side saying that we are not going far enough and the other that we are going too far. I hope that means that we are getting the right balance between what the British people wish to see and allowing for the fundamental human rights we all benefit from.
I hope the Chair will indulge me for a moment because I would like to directly address the comments from the hon. Member for Brighton Pavilion. It was unfair and, frankly, quite insulting to suggest that we introduced the Bill to chase rhetoric. I feel very passionately on behalf of my constituents about the importance of the Bill. I know that the hon. Lady and I represent very different constituencies, but she says that there is universal support for refugees. I am sure that she, like me, is watching with horror the masked-up thugs on the streets trying to attack asylum seekers and chasing them out of their accommodation, but when I knock on doors in my constituency, people constantly raise the unfairness of people who seek to exploit our systems, processes and commitment to values like universal human rights, because they can see that those people are not genuine and that they are exploiting our generosity. While we want to fulfil those commitments, it is really important to me that the system has integrity, and that is what the Bill is about.
Anna Turley
I do not mean to be rude, but the hon. Lady has had plenty of time. We can pick this up outside the Committee room, but I wanted to get that on the record.
Clause 18 introduces a definition of article 8 family life into UK primary legislation for the first time, giving courts and decision makers a more consistent framework to apply to immigration cases. Until now, courts have had to determine the existence and scope of family life on a case-by-case basis, which has resulted in significant variability in outcomes. Article 8 is a two-stage test. First, a decision maker or court must decide if family or private life exists. Secondly, where family or private life is established, they must decide whether interference with it pursues a legitimate aim, such as the interests of public safety or the economic wellbeing of the country, and is proportionate when the nature of the breach is balanced against the public interest of removing an individual or refusing them entry.
It is right that article 8 acts as a safeguard to protect genuine family relationships. However, these protections can create opportunities for individuals to rely on weak or peripheral family connections as a basis to remain in or come to the UK. Clause 18 addresses this. It acts in tandem with clause 19 by setting coherent parameters for when family life can be established in line with Strasbourg case law before the strengthened public interest test is applied. It provides a clearer statutory framework for determining whether family life exists for article 8 purposes.
David Smith
Does the Minister agree that unless we introduce a definition of a family, the term becomes entirely subjective?
Anna Turley
My hon. Friend is absolutely right. That is why we have seen the extreme examples of people clearly thwarting the system to try to remain.
The clause makes clear that family life will normally concern the core cohabiting family unit while retaining provision for cases involving genuine parental relationships or additional elements of dependency. This will narrow the circumstances in which a tenuous relationship with a child, or an extended family relationship involving no more than nominal ties, can be used as the basis of a claim. It will support more consistent decision making while retaining the flexibility required. This is key to restoring order and control to the immigration system, ensuring that if someone does not meet the requirements of our rules, they will not have the right to reside here.
Clause 18 makes clear that family life is normally limited to the core cohabiting family unit while preserving flexibility for cases where family life may exist outside of that, aligned with Strasbourg case law. It also clarifies that biological parenthood alone is not enough to constitute family life; there must be evidence of a genuine and subsisting parental relationship. For adult relatives outside the core family unit, financial support, illness, emotional support or concern about conditions overseas will not by themselves establish family life; the relationship must involve true elements of dependency.
Melanie Onn
Would it be the case that someone who had hitherto been an absent father would not meet the criteria in the Bill?
Anna Turley
My hon. Friend is absolutely right. That is exactly what we are seeking to do. We have had evidence of people moving back in with families and dependants purely on the basis of trying to put forward this claim.
Matt Vickers
We are talking about the use of the term “normally”, but would the examples the Minister listed not fall into subsection (4)(b) anyway, meaning that the word “normally” is not required to help them get across the line?
Anna Turley
I am afraid that I disagree. I remind the Committee that, just because family life is established, it does not mean that an individual will automatically be able to remain in or enter the UK. Instead, all cases where family life is found to exist will also be considered at the second stage test, where the courts will have to consider whether it is in the public interest to refuse leave to remain or enter.
Anna Turley
I will just explain a little bit more, and I will hopefully answer the hon. Gentleman’s point. The word “normally” is deliberate and necessary. It allows us to establish a clear and deliberatively restrictive framework in which article 8 family life will ordinarily be confined to the core family while retaining the limited flexibility required for ECHR compliance.
Family relationships, as we have said, do not always fit neatly in formal categories or involve cohabitation. In exceptional cases, a relationship outside the core cohabiting family may, in substance, be akin to one within it. “Normally” enables a court to recognise genuine family life in those limited circumstances, based on the facts of the individual case. Removing it would turn a strong presumption into an inflexible rule, which would risk the exclusion of genuine family relationships and therefore be incompatible with the ECHR, potentially opening us up to even more litigation.
Crucially, this is only a threshold test. Establishing that family life exists does not mean that an article 8 claim succeeds, or that an individual has the right to remain. It simply means that the court moves on to the next stage to consider whether interference with that family life is justified and proportionate, taking account of public interest. Accordingly, the Government do not support the amendments.
Amendment 103, also tabled by the hon. Member for Mid Bedfordshire, seeks to remove subsection (6) of this clause, on the basis that it undermines the effect of subsection (5). I do not, however, accept that that is the case. Those two provisions address different questions: subsection (5) clarifies what cannot independently establish family life between adult extended family members, while subsection (6) preserves the fact-sensitive assessment that is required once family life is engaged.
Subsection (5) makes it clear that financial support, emotional reliance, illness and concern for someone living amid war or instability do not, when taken independently, establish the necessary dependency. Those circumstances do not, however, cease to be relevant for every purpose. If family life is established, the court must then undertake the separate public interest and proportionality assessment.
Subsection (6) therefore provides an important safeguard to ensure that, at that stage, the full factual circumstances can be considered when balancing any interference with family life against the public interest. It also protects the Home Office’s freedom to consider those factors when arguing that the public interest requires a refusal of leave.
Turning to the Government amendments, it is right that children are given additional safeguards in article 8 decision making. Given those well-meaning protections, a tenuous relationship with a child can be used by an adult to remain in the UK. The first step to prevent people from relying on weak parental links to children in article 8 claims is to ensure that the genuine and subsisting parental relationship test under this clause operates as intended.
Government amendment 44 therefore makes it clear that a parent does not normally have family life with a child under the age of 18 for the purposes of article 8 unless there is evidence of a genuine and subsisting parental relationship. It broadens the application of the test so that it applies consistently to all parent-child relationships involving a child under 18, regardless of whether the parent and child live together. That clarifies what is relevant: the substance of the parental relationship, not simply the living arrangements. The amendment aims to reduce the scope for weak or limited parental relationships to be relied on in article 8 claims, including where cohabitation has been resumed opportunistically for immigration purposes; it does not remove protection for genuine parent-child relationships. Where there is evidence of a genuine and subsisting parental relationship, family life will continue to be recognised.
Government amendment 45 builds on amendment 44 to ensure that the genuine and subsisting parental relationship test under the clause will have its intended effect of preventing people from relying on weak parental links to children in article 8 applications. Government amendment 45 provides additional detail on how courts and tribunals should assess whether a parent has a genuine and subsisting parental relationship with a child for the purposes of article 8. It sets out factors that may be relevant to that assessment, including the nature of the relationship, the duration and frequency of contact, and whether contact has recently been established or re-established. The amendment aims to promote greater consistency in the application of the genuine and subsisting parental relationship test, ensuring that courts and tribunals focus on the substance of the relationship; the amendment does not prevent genuine parent-child relationships from attracting article 8 protection. Courts and tribunals will continue to consider all relevant circumstances in each individual case.
Joe Robertson
What would happen if someone were living here, but their child was overseas with the other parent—they were cohabiting there, not with the parent here—but the parent overseas died? What happens to the child? I cannot see a provision by which the child can come here, because there was no core cohabiting family arrangement.
Anna Turley
Exactly such a circumstance is why we have provided flexibility within the Bill. The individual case will be assessed under article 8. In such a situation, there is space for that individual case to be assessed. Together with clause 19, Government amendments 44 and 45 provide a clearer and more consistent framework for determining whether removing an individual with a tenuous relationship to a child in the UK is compliant with article 8.
I will just add something on the key principles behind clause 18. The clause establishes clear boundaries for where family life exists, consistent with Strasbourg case law, providing the foundation on which clause 19’s strengthened public interest test is applied. Together, clauses 18 and 19 will ensure that article 8 is not used routinely to circumvent immigration rules, supporting a more ordered and controlled system where those who do not meet the rules are not routinely able to stay in the UK. Members have suggested that the clauses are too expansive and may widen where family life can be found to exist, but that is not correct. A recent Court of Appeal judgment reaffirmed the existing legal framework for assessing family life under article 8. Clause 18 provides greater clarity. The reforms will make clearer how family life and dependency should be assessed, promoting greater consistency in decision making and curtailing expansive interpretation of where family life can be found to exist. I had intended to talk more about the ECHR, but I shall not test the patience of the Committee.
Other points made during the debate included whether the clause was relevant or whether the courts would just ignore what we are trying to codify. Successive Governments have recognised concerns about how article 8 operates in the immigration system, but this Government are undertaking the hard work to understand the comprehensive reform required to restore order and control to the system. We are working within our international obligations to reset this balance, and to provide a more comprehensive and consistent framework to article 8 decision making. Clause 18 works alongside clause 19 by establishing the clear basis on which the Home Office can argue that family life does not exist before consideration of whether the public interest warrants a refusal of leave. Together, the clauses provide a clearer framework for how article 8 should be assessed to promote greater consistency in decision making and ensure that when considering article 8 immigration decisions, the courts place appropriate weight on what Parliament considers to be in the public interest.
In response to some of the other points made by hon. Members, the framing of proposed new section 117AA preserves the small degree of flexibility necessary for decision makers and the courts not to be constrained to determine claims made under article 8 that are inconsistent with the article. Reference was made to the definition of an eligible partner. That definition will be set out in rules and guidance; it is not appropriate to have that level of detail in primary legislation. We need to have flexibility to be able to change and respond to patterns of behaviour and abuse. One hon. Member spoke about young adults. The word “normally” in clause 18 is a caveat to preserve flexibility for young adults who have family life with parents.
I was asked for more evidential requirements; here some case studies might be helpful. The family immigration rules are intended to create a fair system that balances the important of protecting family and private life. When 71% of first-time grants are made to applicants who have arrived illegally or who have overstayed the time they are permitted to be here, it is clear that article 8 is not operating effectively. I was also asked about retrospective claims and whether the measures would impact people already in the UK. Clause 52(9) allows part 2 of the Bill to be commenced with retrospective effect; we will set out our plans for how the measures will be commenced in due course.
I was asked how the adjudicators would be able to interpret the complexity of clause 18 without legal training—something the Committee spoke about quite a lot in the first sitting of its scrutiny. Adjudicators will be properly trained, with all the safeguards that we talked about in the Committee sitting last Tuesday, to apply the new framework and immigration law. The authority will have legal support, underpinned by clauses 2 and 3 of the Bill. The hon. Member for Brighton Pavilion asked about interference. Clause 18 is not about whether interference is proportionate—that is assessed under clause 19. The grounds for interference, such as for the effectiveness of the immigration system, are consistent with ECHR case law.
Nothing in the Bill prevents individualised decision making; we have deliberately kept that ability, and that is a clear requirement of article 8 compliancy in decision making. Hon. Members also spoke about Home Office decision making. As I have made clear throughout the passage of the Bill, we will of course continue to work to improve decision making. The reforms in the clause clarify how family life should be assessed and strengthen the role of public interest in maintaining effective immigration control, which will help to improve decision making by providing the courts with greater clarity, consistency and predictability.
On mental illness and whether that is a route, it is correct that under proposed new section 117AA(4), family life can be engaged where a person suffers a mental illness or infirmity. However, they would need to be incapacitated to the extent that they need constant care and support, and there would have to be no other viable care options. Examples in established case law include where an adult or child becomes paraplegic after a serious illness, or where an adult or child suffers from Down syndrome and is fully incapacitated. It is worth remembering that the provision is only about establishing family life, and that the decision makers and the courts will go on to consider the public interest question. I hope I have answered all colleagues’ points, and I commend the clause to the Committee.
Question put, That the amendment be made.