Immigration Bill

Debate between Lord Pannick and Lord Avebury

Wednesday 5th March 2014 Lords Chamber

[Lord Avebury]

My Lords, Clause 14 circumscribes the freedom of the courts to interpret Article 8 of the ECHR dealing with the right to respect for private and family life. We know from the Minister’s reply to an earlier amendment and from paragraph 18 of the letter that he wrote to noble Lords after Second Reading that there are to be further restrictions in the rules and guidance about what the courts can do regarding Article 8. This clause in effect instructs the court or tribunal which is required to determine whether a decision to remove or deport someone breaches Article 8 to have regard to considerations which are set out at some length. In particular, it invites the court to consider factors that could make the best interests of the child less than paramount in deciding whether the child’s family should be removed.

The noble Baroness, Lady Lister, mentioned the case of ZH (Tanzania), in which a child’s best interests lay in remaining in the UK, and the question was whether the carer should be removed. In that case, the noble and learned Lord, Lord Kerr, said:

“What is determined to be in a child’s best interests should customarily dictate the outcome of cases such as the present … and it will require considerations of substantial moment to permit a different result”.

It seems to me that the Government are saying to the courts that in future they should decide against the appellant where the circumstances are similar to those in ZH, although, of course, it would be possible that, having considered the factors listed in Clause 14, the courts could find that the “substantial moment” test had not been satisfied. Possibly, too, if our own courts throw out carers wholesale, even where the best interests of the child dictate that they should be allowed to remain, a different view will be taken in Strasbourg. I would like to know whether the Government thought about that in drafting Clause 14.

The doctrine of “margin of appreciation” allows states a degree of discretion when taking legislative action in the area of a convention right, but the limits of discretion are defined by case law. Only a narrow margin of appreciation is permitted where a particularly important facet of an individual’s identity or existence is at stake—see Evans v UK—and, perhaps even more closely relevant, where an “intimate aspect of private life” is at stake under Article 8—see Dudgeon v UK, where it was ruled that there must be particularly serious reasons before interference on the part of public authorities can be legitimate in those cases.

The Children’s Commissioner wrote a letter to the then Minister for Immigration in August last year about the operation of the Immigration Rules, and some of the matters that she raised then are directly relevant to this clause. Article 9(1) of the CRC provides for a child’s right not to be separated from his or her parents other than in strictly defined circumstances and where it proves necessary in the child’s best interests. There is a positive obligation on the state to ensure that a child is not separated from its parents unless the child’s best interests require it. The commissioner is now considering the effect on children of this clause, and it would be useful to know whether she was consulted about the drafting.

I am concerned that this clause undermines our obligation under the CRC and that it may lead to unnecessary litigation, damaging to our reputation at the European Court of Human Rights. I hope that it will be reconsidered before Report.

[Lord Pannick]

My Lords, I add my support to the general concerns expressed so eloquently by the noble Baroness, Lady Lister. I have two questions for the Minister. First, can he confirm, as I assume he will, that nothing in Clause 14 is intended to detract from the important principle of law that the best interests of the child are a primary consideration for decision-makers in this context? It is important for Pepper v Hart purposes that the noble and learned Lord makes the position unambiguously clear.

Secondly, before Report, will the Minister please undertake to give further consideration to the advantages of referring in Clause 14 to the best interests of the child? I ask that question as I have some difficulty in understanding how the test in new Section 117C(5)—that is, exception 2: the test of whether the effect of deportation on the child would be unduly harsh—is compatible with looking to the best interests of the child as a primary consideration.