Immigration and Asylum Bill (Seventh sitting)
(Limited Text - Ministerial Extracts only)
Read Full debateThe Committee divided: - Ayes: 3 / Noes: 11 - Question accordingly negatived.
The Committee divided: - Ayes: 3 / Noes: 11 - Question accordingly negatived.
The Committee divided: - Ayes: 13 / Noes: 2 - Question accordingly agreed to.
Matt Vickers (Stockton West) (Con)
It is a pleasure to serve under your chairmanship, Dr Murrison.
The clause addresses a basic question: when someone asks to stay in this country, what does the public interest expect of them? The Government’s answer is one that I suspect most of our constituents would recognise: that the person pays their way, does not rely on the state to put a roof over their head, does not commit crimes, co-operates with the authorities and is of good character. Those are reasonable expectations and we welcome much of the clause.
The clause’s strength, however, comes down to a handful of words. Proposed new subsection 117B(4) of the 2002 Act says:
“No weight should be given to a private or family life”
that is built up while someone is here unlawfully, on leave obtained by deception or in serious breach of their conditions. Think about who that covers—someone who came here illegally, lied to get a visa or broke the conditions on which this country let them in. When the time comes to remove them, that person asks a court to weigh a life built up in that time against their removal.
We agree with the Government that weight should not be given. However, “should” is the language of advice; “must” is the language of law. The Government have already moved from “little weight” to “no weight”, and I welcome that—amendment 105 simply finishes the job. If the Government mean that no weight must be given, let the statute say, “No weight must be given”. In this area of law, a door left ajar is an invitation.
Moreover, the no weight rule applies only where someone is in serious breach of their conditions. What is serious? Is it working beyond the hours that their visa allows? Is it claiming benefits that they are not entitled to? Is it overstaying their visa by a month? The Bill does not say, so a tribunal will decide case by case, which will bring us back to the very weighing exercise that the Government say they want to end. I would be grateful if the Minister could tell the Committee what the Home Office understands a “serious breach” to mean, and whether it will be defined in guidance.
Amendment 104 deals with good character. Proposed new subsection 117B(3A) says it is in the public interest that people seeking to stay here are of good character, but clause 19 does not say what good character means. I agree with my hon. Friend the Member for Mid Bedfordshire that there is already a well-established test in the good character requirement for British citizenship set out in Home Office guidance. Amendment 104 says that the court should apply that test. It would be strange if the bar to stay in this country were lower than the bar to become a citizen of it, and stranger still for every tribunal to invent its own version from scratch.
The clause asks the right questions. Our amendments ensure that the answers carry the force of the law. The Government have chosen “no weight” over “little weight”, and that is welcome; let them finish the job by replacing “should” with “must” and telling us what they mean by “good character” and “serious breach”. I commend our amendments to the Committee.
The Minister for Border Security and Asylum (Anna Turley)
It is a pleasure to serve under your chairmanship again, Dr Murrison. I thank all hon. Members for their contributions to the debate on the clause and amendments in this grouping.
Before moving on to the amendments, I will give some background on what the clause will do. The balance between an individual’s family rights and the public interest in maintaining an effective and controlled immigration system has shifted, and it needs to be reset. Without greater clarity from Parliament on how that balance should be struck, the domestic interpretation of article 8 has expanded beyond what our international obligations require, resulting in inconsistent decision making and high volumes of article 8 grants to people who cannot meet the rules to come or to stay in the UK.
More than half of those who stayed in the UK for family reasons last year did not meet our criteria to be able to stay here, instead relying on their article 8 rights. That undermines public confidence in the immigration system and the rules-based international order. It also comes at a significant cost to the UK taxpayer. As has already been mentioned, the average net lifetime fiscal cost for each first-time grant is £141,000, equating to approximately £4.9 billion for those granted on the basis of article 8 in 2025 alone.
Colleagues have asked about the evidence base behind those figures, so I will give a bit more information about it. We undertook a deep dive cohort analysis to examine a representative sample of 3,252 article 8-related applications, in order to support the policy development of these measures in the Bill. Further details are in the impact assessment. I am afraid that the unpublished internal sample that was referred to will not be made available due to the personal data sensitivities involved, but we will obviously keep under review any further analysis that we would be keen to share with the Committee throughout the course of the Bill, for example other statistics that have been mentioned.
This trend has been driven by high volumes of people who have arrived illegally or overstayed in the UK, at 71% of first-time grants, or by people who are unemployed and are making a minimal economic contribution—76% of first-time grants. It is clear that the system is not functioning fairly and effectively. That is why the British public feel exasperated that such exemptions are being abused to enable people to circumvent the system.
Clause 19 will help to restore a fairer balance between an individual’s right to family life and the public interest in maintaining an effective and controlled immigration system. It will provide a clearer statutory framework that places greater emphasis on compliance and contribution, resulting in more consistent and robust outcomes. These reforms will realign UK legislation with Strasbourg, ensuring that our domestic approach to article 8 is within and, crucially, not beyond our international obligations, as it is now.
Mr Paul Foster (South Ribble) (Lab)
Clause 19 introduces some quite fundamental changes, which I fully support, but is the Minister confident that it will still meet the requirements of the European convention on human rights? That is the litmus test.
Anna Turley
My hon. Friend makes an extremely important point. That is why the drafting of clause 19 has been very clear and specific, which I will say more about later.
It is important that we comply with our international obligations. We have a proud history of doing so—we helped to devise, draft and create these obligations—but we also have a history of overinterpreting them. It is not a free-for-all, but it is important that we act within the requirements we are obliged to meet and do not go beyond them. That is what the provisions in the Bill seek to achieve.
That includes a clarification that judges must consider the economic impact on the taxpayer of allowing people to remain in the UK, including by considering whether they can support themselves and their family. It is only fair to all those who work hard in this country to be financially independent and to house themselves, and who are not overly reliant on public services, that they do not see others who otherwise have no right to be here imposing avoidable burdens on society and public services.
Tom Gordon (Harrogate and Knaresborough) (LD)
Will the financial independence test be individualised, will it be evidence-based in its assessment, and will it recognise barriers such as credit history, references and guarantors? Furthermore, will a survivor’s use of refuge or public funds to escape abuse count against them?
Anna Turley
I thank the hon. Gentleman for his questions and I will say a lot more about those issues when I respond to the contributions by the hon. Member for Brighton Pavilion. However, we are absolutely clear that we are not going to penalise people for experiencing hardship. These reforms preserve protections for vulnerable people and children, but it is vital that we make it clear that immigration control and the wider public interest should be given proper weight in any consideration. This is about restoring balance, not removing safeguards. That is critical.
Mr Jonathan Brash (Hartlepool) (Lab)
Having listened to some contributions, particularly from the hon. Member for Brighton Pavilion, I think that most fair-minded people would be concerned that these reforms could have a detrimental impact on children. Can the Minister confirm whether or not these reforms remove protections for children?
Anna Turley
My hon. Friend raises a critical issue that is, of course, dear to all of our hearts. Again, I will say more about it later, but these reforms absolutely do not remove protections for children. The best interests of children will continue to remain a primary consideration in immigration decision making, as they should be. The reforms in clause 19 ensure that children’s interests are considered alongside other important factors, including compliance with immigration law and the wider public interest in maintaining an effective immigration system.
Anna Turley
Forgive me, but I have not addressed these issues yet, so if the hon. Gentleman can be patient for a little longer—I am sure he will have more questions afterwards—I would like to make some progress, if I may.
The clause also introduces character and conduct as a factor in the public interest test. This will require judges to have regard to harmful conduct, including criminality below the deportation threshold and outside the mandatory suitability refusals. This is an important element of tackling abuse and takes us one step towards a fairer system that the public can have confidence in.
The clause further reduces avenues for abuse by requiring that no weight—instead of little weight, as now—should be given to an article 8 claim established when someone is here illegally, or legally but only by deceiving the Home Office, or if they have seriously breached the conditions of their permission to be in the UK. That will enable us to more effectively enforce our immigration rules and prevent people from unfairly benefiting from time spent in the UK in violation of our rules, and will avoid the creation of perverse incentives for people who are here unlawfully to try to deliberately establish article 8 claims.
Although it is right that essential protections for children are retained, it is not right that adults who abuse our immigration system are almost guaranteed to be allowed to stay if they can prove a parental relationship with a child in the UK. Currently, there is no need to carry out a full balancing exercise if there is a child. This is the main source of successful article 8 claims, two thirds of which result in residence rights being granted.
The clause clarifies which factors should be considered when determining whether it is in the public interest to remove the parent of a qualifying child from the UK, and introduces a provision to assess the impact of removing a parent where a child remains in the UK.
I thank the hon. Member for Brighton Pavilion for amendment 61, which sets out a new public interest consideration, under which specific regard would be given to the circumstances of victims of violence against women and girls when assessing whether interference with an individual’s article 8 right is justified. Of course, we absolutely recognise and take seriously the importance of tackling violence against women and girls, and the devastating impact that it has on victims. However, the Government do not consider the amendment to be necessary.
Clause 19 already preserves a case-specific assessment in which courts and tribunals can consider all relevant facts and evidence, including experiences of domestic abuse, violence and exploitation, and the safeguarding concerns that the hon. Lady mentioned in her case studies. The holistic article 8 assessment that the clause retains ensures that protections exist for vulnerable people and that support remains available for those who genuinely need it. In addition, existing provisions in the immigration rules, including “Appendix Victim of Domestic Abuse” and the migrant victims of domestic abuse concession, provide specific protections. Those safeguards are there to ensure that victims’ experiences are properly recognised and taken into account.
I thank the hon. Member for Mid Bedfordshire for tabling amendment 104. I understand the intention behind it, but I am afraid that the Government do not consider the amendment to be helpful. I agree that good character is an important consideration in article 8 cases. Including that factor in the public interest test ensures that protections are focused on those who have acted responsibly. That is an important element of creating a fair system that the public have confidence in and that is not open to abuse. The clause establishes that and requires the courts and tribunals to have regard to harmful conduct, including that below the deportation threshold and outside mandatory suitability refusals. We will set out further detail on that in published guidance and the immigration rules.
Let me be clear that the existing guidance, including the guidance mentioned by the hon. Gentleman, will be a useful comparator and will play an important role in shaping this. We do not want to be tied exclusively to the 1981 guidance, but want to develop ours further. Our approach will therefore reflect that already taken in nationality legislation, where good character is not exhaustively defined on the face of the Bill but is addressed through the guidance.
Siân Berry
I am very interested in the fact that the Minister has just talked about going further on good character in some guidance. Will that guidance take into account factors that might otherwise weigh against the character of someone making an appeal if they have been exploited or abused? Is that the kind of thing that the Minister is thinking about in terms of deviating from the 1981 guidance?
Anna Turley
The guidance will set out very clearly what we will ask the courts and tribunals to have regard to in relation to harmful conduct. We will also make sure, as I have already mentioned, that there is sufficient protection regarding issues around domestic violence. That will be in our immigration rules, and it is in our existing provisions. We will ensure that courts and tribunals consider all relevant facts and evidence. I place this on the record in Committee: we will expect experiences of domestic violence, abuse and exploitation, and safeguarding concerns to be a key part of that.
To go back to amendment 104, our approach will reflect the approach already taken in nationality legislation, so that good character is not exhaustively defined in the Bill, but addressed through guidance. Everything raised by colleagues in Committee will be on the record.
Joe Robertson
Surely the Minister understands that while “no weight” may be the starting point, the end point is the decision, and that is the issue. A decision maker can have a starting point of “no weight”, but attach weight, and suddenly the decision is not where I think even she might intend in many cases.
Anna Turley
I appreciate the point that the hon. Gentleman is trying to make, but it is important for cases to be considered on a case-by-case basis. We can be as specific as possible, but the reality is that courts and tribunals have to maintain the flexibility to determine cases based on the individual facts and circumstances before them. It is important that our drafting enables that.
Blake Stephenson
I want to press that point. If the Minister’s position is that she wants the starting point for tribunals to be “no weight”, then what is the harm in adding “must” to make it absolutely clear that the House expects tribunals to apply “no weight”? But then she says that she wants tribunals to have flexibility, so which one is it?
Anna Turley
I appreciate the point that the hon. Gentleman is trying to make, but we absolutely cannot bind the courts’ hands in this situation. The reality is that they have to be flexible. We can set a very clear steer—that is on the record, in the Bill and in legislation—but it is important that we allow the courts flexibility, because their role is to establish the facts, case by case.
David Smith
I was going to make the same point that the Minister has just made to some degree. It seems to me that the key terminology in the clause is “no weight”. Can she say more about what that will mean in practise?
Anna Turley
As my hon. Friend rightly flags, “no weight” is the starting point for the weight that should be given to a person’s private or family life established in the time that they were in the UK without permission. That is a clear definition for the court. Applying the “no weight” rule to all breaches of leave could mean minor or technical breaches leave cases open to challenges of disproportionality.
Amendment 106 is in a similar vein. Although we agree that non-compliance must have consequences, it is appropriate that we distinguish between serious breaches and less significant or technical non-compliance, because we always have to have proportionality. Removing “serious” would considerably widen the provision and could require the same approach to be taken to conduct of very different gravity. The Government’s reforms already substantially strengthen the public interest side of the article 8 balancing exercise. The inclusion of “serious” helps to ensure that the reforms are focused on the cases of greatest concern.
Blake Stephenson
In that case, if “serious” is to remain in the Bill, will the Minister help the Committee to understand what types of scenarios might constitute serious or not serious?
Anna Turley
I appreciate the hon. Gentleman’s attempts to define this, but it is important to say that we are keen not to include specific definitions in the Bill, as we are worried that they could result in disproportionate outcomes. Our approach is to be robust, targeted and, crucially, legally sustainable. We do not want to allow ourselves to be open to challenge.
Tom Gordon
The Minister talks about not wanting to include specific definitions in the Bill, but some stakeholder groups are concerned that the Bill does not rule out British children being subject to the child test. Would she not consider including such a provision in the Bill to ensure that it does not end up forcing a British child out of the country?
Anna Turley
Again, we have to look at each case on its individual merits, and we cannot bind the court’s hands in such a situation; the family rules will be taken in their entirety.
Tom Gordon
Can I press the Minister a little further on that point? To give a direct quote, can the Minister guarantee that no British child will be expected to leave the country of which they are a citizen as a result of this clause?
Anna Turley
I am not going to rule that out here in the Committee, but I can come back and clarify that point for the hon. Gentleman. My expectation is that if someone is deported, and they wish to take their child with them, they are perfectly entitled to do so. It is not for the Government to say that the child has to stay in this country, rather than moving with their family. I will not rule that out here in the Committee.
In conclusion, clause 19 tightly defines the public interest test to ensure that individual rights are properly balanced against the public interest in effective immigration control, and to eradicate the abuse that has crept into our system.
Siân Berry
Further to the discussion with the Minister about ensuring that victims of abuse and sexual violence are protected, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment proposed: 105, in clause 19, page 17, line 3, leave out “should” and insert “must”.—(Blake Stephenson.)
This amendment would require, rather than advise, that no weight is given to private or family life established while a person is in the United Kingdom unlawfully, with leave obtained by deception or in serious breach of their conditions.
Question put, That the amendment be made.
Anna Turley
I thank hon. Members for a very full discussion of the amendments. I have a lot to respond to, so I hope colleagues will bear with me while I try to pick up on all the points and make as much progress as I can.
I think all of us in this room will share a real commitment to the clause and this group of amendments. The clause is a huge priority; it really underlines the issue of the deportation of foreign national offenders and the exemptions through which they have sought to remain in this country. As the hon. Member for Stockton West expressed, the issue causes huge concern, fear, anxiety and outrage. This is such an important clause and such important part of the Bill and of what we are trying to do.
I also put on record the Government’s commitment on this issue; that is not to make a political point, but we have deported more than 60,000 foreign national offenders since we came to power at the 2024 elections—the highest number in a decade, and 41% higher than in the previous two-year period. I say that not to make a political point, because we are in Committee, but to underline our determination and commitment on this issue, should there be any doubt, given some of the concerns raised by Opposition Members, about our absolute determination on this issue. It is extremely important to us.
Clause 20 reforms the application of article 8 in deportation cases, restoring a proper balance between individual rights and the public interest. The current framework contains different, sentence-based tests, which act as exceptions to deportation. Where a person can meet the private and family life exceptions, or the higher test, which applies for the most serious offenders, they will not be deported. That means that, in some cases, deportation can be avoided by meeting the family or private life exceptions, without the court conducting a full consideration of all factors weighing in favour of the public interest in deportation.
The clause addresses that by requiring the courts to conduct a full proportionality assessment before it can find that deportation would be disproportionate. The public interest will therefore be considered in every deportation case before an article 8 breach can be found, rather than only in some categories of case, as at the moment. Judges will be able to block deportation only in certain exceptional circumstances. The clause retains important existing concepts, including “unduly harsh”. I appreciate some of the concerns expressed by Opposition Members, which I will come to, but the concept is well understood by the courts and supported by extensive case law.
Under the new framework, showing that deportation would have an unduly harsh effect is insufficient—without further consideration—to demonstrate a breach of article 8 and will no longer be the point at which an article 8 claim succeeds automatically. That is a fundamental change. The court will now have to go on to consider whether the interference with private or family life can be justified when weighed against the public interest in deportation. The new framework establishes a clear statutory framework for assessing whether deportation will be disproportionate, requiring proper weight to be given to factors such as the nature and seriousness of the offending, the person’s immigration status, the economic impact of allowing them to remain in the UK, and the wider public interest in public safety and the prevention of disorder and crime.
The effect of the reforms is to establish a clearer and more consistent framework, in which deportation may be avoided only in truly exceptional cases. For the record hereafter, I clarify that emphasis in Committee. A person will still receive an individual assessment of their circumstances, but the courts will be required—I emphasise “required”—to give proper weight to Parliament’s view that deportation is strongly in the public interest.
Before I speak to the amendments, I will refer to some of the points made in the debate. I was asked whether the clause weakens provision for more serious offenders. No, it does not; they must still meet the same tests as other offenders, and face a proportionality test. The clause provides that the more serious the offence, the greater the public interest in deportation. Again, I will say more on that when I come to the specific Opposition amendments.
I was asked why sentence thresholds are being removed. We do not need sentence thresholds if we are going to treat all deportation cases the same. The courts can still, and indeed must, take account of sentences and seriousness of offending in considering proportionality. That is required on the face of the Bill by subsection (2) of proposed new section 117C of the Nationality, Immigration and Asylum Act 2002.
The hon. Member for Mid Bedfordshire asked, why not cover family deportation under section 3(5)(b) of the Immigration Act 1971? The key point is that the exclusion of section 3(5)(b) is deliberate. Clause 20 is concerned with how article 8 is to be interpreted in cases involving the deportation of a foreign national whose own conduct has made them liable to deportation. A family member liable to deportation under section 3(5)(b) of the 1971 Act is not being deported because of their own criminality or conduct. Even if that power were used, it is appropriate that any article 8 claim made by that family should continue to be assessed under the framework set out in section 117B of the 2002 Act, rather than the deportation framework.
The hon. Member for Stockton West made a number of points. On his point about the House of Commons Library briefing, those with a sentence of over four years would previously need to establish that they meet very compelling circumstances over and above the exceptions. Now they must establish that they meet an exception and that their deportation cannot be justified. We would expect such cases to fail the proportionality assessment even if they meet the exception. Our provisions enhance those deportation provisions.
I would also like to refer to some of the questions raised by the hon. Member for Isle of Wight East. He criticised proposed new section 117C of the 2002 Act. It is important to make it clear that the public interest is in deportation unless it is not justified. That is enhanced in proposed new section 117C(2) by making it clear that the more serious the offending, the stronger the public interest is. The hon. Gentleman is right that the first exception under proposed new section 117C(4)(a) means the person’s whole life, not just their adult life. That is the same as under existing law. To his points on social and cultural integration, the onus is on the applicant to establish that. Again, that is already covered in existing legislation. Caseworkers are experienced in how to deal with that and familiar with that understanding.
I want to make some more points on the “unduly harsh” test. Again, that is in existing legislation. The Supreme Court has already interpreted it extremely narrowly. On the issue of court latitude, which the hon. Member for Isle of Wight East raised, proposed new section 117C makes it clear that deportation is in the public interest and, as I have said, that the more serious the offending, the stronger the public interest will be. It is important that courts have a clear steer on Parliament’s view of public interest, and the process of the Bill will establish that. To resist deportation, someone must meet the exceptions and establish that their deportation cannot be justified in the light of the public interest. Deportation can therefore be resisted only in clearly defined and limited circumstances.
I will move on to the amendments, and I hope to provide a bit more clarity. Amendments 107, 109 and 111 seek to impose a higher threshold for deportation for foreign criminals who receive a custodial sentence of four years or more, or who commit certain more serious offences. The amendments would require such persons to demonstrate something more than meeting the private or family life exceptional circumstances test. There should be no suggestion that we are seeking to lower the threshold for foreign criminals who are given sentences of more than four years. That is misplaced.
Clause 20 amends the current deportation framework by introducing a full proportionality exercise before an article 8 breach can be found. That will ensure that the courts are required to consider and take account of the overall public interest in deportation. All foreign nationals subject to deportation will now have to meet a two-stage test to succeed in their article 8 claim. The first stage of the test requires the person to satisfy one of three exceptional circumstances tests. Where that exceptional circumstances test is met, they must also show that the interference with their private or family life rights—as demonstrated by an exceptional circumstance—cannot be justified. The second stage of the test requires a full proportionality exercise, weighing all the factors in favour of deportation.
As I have said, clause 20 specifically states that the greater the severity of offending, the greater the public interest in deportation. That is clear. It will make it less likely that the interference with article 8 rights will outweigh the public interest in deportation. We expect the courts to give significant weight to the public interest in deporting persons with long custodial sentences and those who have committed serious offences. I also clarify for the record that exceptional circumstances are not exceptions to deportation. Now, when someone demonstrates an interference with their family or private life, they will no longer automatically avoid deportation. There will be an assessment of the public interest test—
11.25 am
The Chair adjourned the Committee without Question put (Standing Order No. 88).
Adjourned till this day at Two o’clock.