European Convention on Human Rights

Damian Green Excerpts

Tuesday 19th June 2012 Commons Chamber

[Pete Wishart]

Of course I have read the case. The hon. Gentleman has ruined his campaign totally. He has conducted a great campaign in some ways, because it has attracted a lot of attention, and good luck to him because he has managed to secure all these fantastic column inches in all the right-wing newspapers, but he has done himself no justice with that intervention.

When the Home Secretary made her statement the other day, I asked her about these other rules that we now have to consider, which I believe we are now being asked to support. They include the measure that a family has to come up with a minimum income guarantee of £18,600. In the statement, I asked the Home Secretary why there is a flat rate across the whole United Kingdom and why there are not different rates to reflect the different incomes in other parts of the UK. In Dundee, there is a different standard of living than in London docklands—that just makes sense. She said that it would not be possible to impose different rates across the UK. What absolute rubbish. That happens in Australia. The Australians have different immigration rules for different states and they seem to get along perfectly well. All we would need to do is license people. If there was an agreement for someone to come to one part of the UK, they would have to stay in that part or lose their right to stay here and be arrested and deported. That is simple, straightforward and could easily have been done, but the Home Secretary decided that was not for us, and now everyone across the UK has to have at least £18,600.

Even if that sum is secured, the partner is now likely to be stuck in the purgatory of a probation period of five years rather than the current two. If one is foolish enough to have children, the required income level rises substantially. We are told that this is to prevent migrants from sponging off the state, but Government statistics show that foreign-born people are less than half as likely to claim benefits as those who were born here. The measures will force families to choose between staying apart or moving abroad.

The Home Secretary ridiculously says that these immigration policies are not about numbers, but if they are not, why have the Government imposed the arbitrary cap that is already doing such damage to our universities, colleges and one of the few sectors of our economy that is actually booming?

[The Minister for Immigration (Damian Green)]

I think the hon. Gentleman is very confused. He is talking about a cap on universities but there is no cap on student numbers in this country. There is a cap on work visas, which is nothing to do with universities.

[Pete Wishart]

I am grateful to the Minister. He has received representations from countless educational institutions right across Scotland that have told him again and again about the damage that his immigration policies are doing to our university and college sector. I wish that he and the Home Secretary would respond positively and do the right thing for our universities and colleges, which are suffering in Scotland because of these Tory immigration policies.

This is such a Tory solution. There is one rule for the rich immigrant and another for the poor, forcing an estimated 15,000 families a year to emigrate or live apart. That is heartless and it gives the lie to the Tories’ manifesto claims to support what in their words is society’s building block—the family.

We will not do things this way and we look forward to getting the levers of immigration. We have observed what has happened down here and it does not work. We have seen the chaos of the UKBA and we will not do the same. We will make sure that Scotland is a welcoming, accommodating place when we have the levers of immigration at our disposal. I was at one of our national conferences at the weekend and I listened, consecutively, to an Italian Scot, an Asian Scot and a Frenchman who declared himself a new Scot and a European. Such people all contribute to the Scottish economy and to our community and culture. They have enriched Scotland. When we secure the full levers of immigration we will design a system that will attract the best and the brightest and we will address our demographic and population concerns. I cannot wait for that day when we will get rid of the Daily Telegraph, Daily Mail right-wing Tory nonsense determining our immigration policy here.

--- Later in debate ---

[The Minister for Immigration (Damian Green)]

I am grateful to Members on both sides of the House who have treated this important subject seriously today. I am also grateful for the support for the Government’s approach that eventually appeared from the Opposition Front Bench, although I was rather doubtful about it earlier, when the shadow Home Secretary was speaking. I am also grateful to the right hon. Member for Blackburn (Mr Straw) and the hon. Members for Glasgow South (Mr Harris) and for Strangford (Jim Shannon), as well as to those on the Government Benches who have spoken.

Let me deal with the central question. The motion clearly sets out for the agreement of the House where we believe the balance should lie between the right to respect for family and private life under article 8 of the European convention on human rights and the legitimate aims of our immigration controls. That view is reflected in the new immigration rules that we laid before the House last week. We are in complete agreement that article 8 is a qualified right. Article 8 sets out the basis on which the public interest can justify proportionate interference in individual rights to family and private life. It is the responsibility of the Government, and of Parliament, on behalf of the public, to set out when and how the public interest should qualify those individual rights. The immigration rules are the appropriate vehicle for the expression of the views of the Government and Parliament.

[Pete Wishart]

I am beginning to get confused all over again. I thought that we had received clarification on this earlier, but the Minister is now inviting us to support all the Government’s immigration rules, which will be unacceptable to many people in the House.

[Damian Green]

No sensible person would put that interpretation on what I have just said. No sensible person would put that interpretation on the motion that is before the House, which the hon. Gentleman has shown, over the past three and a half hours, he is incapable of reading. Read the motion, and you will see what we are debating.

The immigration rules are the appropriate vehicle for the expression of the views of the Government and Parliament. They are a statement of the normal practice to be followed by the Secretary of State’s caseworkers in making immigration decisions under the statutory framework that Parliament has provided.

Since the Human Rights Act 1998 was implemented in 2000, it has become increasingly apparent that the existing immigration rules do not provide a sufficiently clear and comprehensive framework for considering family and private life cases in line with article 8. The rules have not reflected adequately the factors that can weigh in favour of, and against, an applicant’s article 8 claim. The courts—understandably, as the Government have never set out for Parliament’s agreement a clear position on article 8 in the immigration rules—have had to decide for themselves on the facts of the cases before them whether article 8 did or did not provide a basis for the applicant to come to or stay in the UK.

The courts have therefore not been able to give due weight to Government’s and Parliament’s view of where the balance should be struck between individual rights and the public interest, as they have not known fully what that view is. As the Government and Parliament have not established the correct balance in the rules, the courts have arguably been as well placed as the Secretary of State’s caseworkers to assess the case and make a decision. In the absence in the rules of a comprehensive statement of public policy in these matters, the courts have developed the policy themselves through case law on issues such as the required level of maintenance for family migrants.

The changes to the immigration rules that we laid before Parliament on 13 June fill the public policy vacuum we inherited by setting out the position of the Secretary of State on proportionality under article 8. The new rules state how the balance should be struck between the public interest and individual rights, taking into account relevant case law and evidence. They provide clear instructions for caseworkers on the approach they must normally take, and they therefore provide the basis for a consistent, fair and transparent decision-making process.

As the immigration rules will now explicitly take into account proportionality under article 8, the role of the courts should focus on considering proportionality in the light of the clear statement of public policy reflected in the rules. They should not have to consider the proportionality of every decision taken in accordance with the rules on every immigration application. The starting point from now will be that Parliament has decided how the balance under article 8 should be struck, and although Parliament’s view is subject to consideration by the courts, it should be accorded the deference rightly due to the legislature on the determination of public policy. That is the approach that the new immigration rules seek to put in place in the immigration system.

By subjecting the public interest that the rules reflect to debate and approval in Parliament today, we are making good the democratic deficit we inherited on the operation of article 8 rights in the immigration sphere. We are also responding to the need that the courts have themselves identified for the Government and Parliament to take proper responsibility for these matters of public policy.

The hon. Member for Hyndburn (Graham Jones), who is not in his place, raised the important Mohammed case, which precisely illustrates why we are proceeding in this way. He asked a specific question about what would happen in a case like that where the sentence was not for 12 months or more. I am happy to repeat what my right hon. Friend the Home Secretary said in her opening remarks, that “even if a criminal has received a shorter sentence, deportation will still normally be proportionate if their offending has caused serious harm.” There is that additional power.

My hon. Friend the Member for Stone (Mr Cash) raised an interesting point, which was repeated by the shadow Immigration Minister, about which rules we should look at—the rules as they stand today or the new rules. Again, I am more than happy to repeat what my right hon. Friend the Home Secretary said, this time in her statement last week:

“I will shortly ask the House to approve a motion recognising the qualified nature of article 8 and agreeing that the new immigration rules should form the basis of whether someone can come to or stay in this country”.—[Official Report, 11 June 2012; Vol. 546, c. 50.]

That is what she told the House last Monday; that is what we are debating today.

The shadow Home Secretary and, indeed, my hon. Friend the Member for Canterbury (Mr Brazier) made points about the importance of removing more foreign national offenders, on which we agree. She asked why the numbers had come down. The simple fact is that fewer cases are arising that fit the deportation threshold. The numbers in this category are down approximately 12% in 2011 in comparison with 2010, while the overall prison population has not fallen. The number of people forcibly removed or departing voluntarily during the first quarter of 2012 has remained steady. It is slightly higher than in the fourth quarter of 2011, so I hope the right hon. Lady will be reassured that action is being taken on the very important point she raised about removals.

In what might be described as the less serious part of the debate, the hon. Members for Hayes and Harlington (John McDonnell), for Perth and North Perthshire (Pete Wishart) and for Glasgow South (Mr Harris) and my hon. and learned Friend the Member for Torridge and West Devon (Mr Cox) raised the issue of whether the courts would take any notice Parliament. What the new rules do are respond to what the courts have said about the lack of a clear framework in immigration cases for balancing individual article 8 rights and the wider public interest. The House of Lords—this was before we had the Supreme Court—observed in the Huang case back in 2007 that immigration lacks a clear framework representing the competing interests of individual rights and the wider public interest because the immigration laws

“are not the product of active debate in Parliament”.

That is precisely the purpose of today’s debate. We are having an “active debate in Parliament” on immigration rules as they affect the balance between individual rights and collective rights on article 8.

Frankly, this House ought to welcome the fact that Parliament becomes the central part of a debate on an issue that is important to our constituents. I am genuinely surprised that so many Opposition Members appear to think it inappropriate for Parliament to act in this way. I shall take up what must be a luxury for any Home Office Minister under any Government and pray in aid Liberty, which said today:

“Any fair immigration policy will be a combination of rules and discretion, allowing both for clarity and compassion in the handling of individual cases and the system as a whole. On that basis, Immigration Rules are the obvious way for any Home Secretary to seek to guide both her officials and the judiciary in their handling of cases.”

I think Liberty is exactly right in its interpretation. As I say, that is what we are doing today.

My hon. Friend the Member for Keighley (Kris Hopkins) can be reassured that we are indeed, as he urged, trying to deport as many criminals as possible. I hope he will be reassured by the figures that I read out a few moments ago.

My hon. Friend the Member for Esher and Walton (Mr Raab) has huge legal expertise in this matter and spoke with much wisdom. I was glad to hear from him that my answers to all his parliamentary questions have done some good in providing him with facts and figures. He asked what will happen if the courts do not respond. As my right hon. Friend the Home Secretary said previously, if we need to take further steps, we will, but we do not anticipate that happening.

My hon. Friend the Member for Witham (Priti Patel) eloquently pointed out how the distortions of human rights law have indeed created real problems in this country. She said she would like to see people taken straight from jail to the airport to be deported. I cannot quite promise her that, but I hope she is reassured to some extent that the average number of days between a foreign national prisoner finishing their sentence and being removed has decreased markedly. In 2008, it was 131 days; by 2011, we had got it down to 74 days, so we are indeed speeding up that process.

The hon. Members for Islington North (Jeremy Corbyn) and for Wigan (Lisa Nandy) talked about the best interests of children. The hon. Lady is quite right that she and I worked closely together for some time on these matters during the dark days of the previous Government when they were trying to do bad things through immigration legislation. Of course we recognise the importance of the statutory duty under section 55 of the Borders, Citizenship and Immigration Act 2009

“to safeguard and promote the welfare of children…in the UK”.

It is precisely for that reason that we have reinforced our approach by bringing a consideration of the welfare or the best interest of children into the new immigration rules. In assessing that best interest, the primary question in immigration cases involving removal is whether it is reasonable to expect the child to leave the UK. The best interests of the child will normally be met by their remaining with their parents. As the hon. Lady predicted, I make the point that in these rules, exceptional factors are allowed for.

There will be exceptional factors. I do not entirely share the hon. Lady’s view of the box-ticking nature of the way in which the UKBA and individual caseworkers approach these cases, not least because of the training that they have been undertaking—training to which, as she rightly said, she has contributed in the past. We are continuing to train so that our caseworkers act in a sensitive way, but exceptions can certainly be made in extreme cases.

In these rules we are introducing clear, proportionate requirements relating to who can enter or remain in the UK on the basis of their family life. They are requirements that reflect case law, evidence, independent advice and public consultation. We invite the House to agree that they are requirements which reflect the fact that family migration should be controlled in the public interest, and the fact that the best interests of a child in the UK should be taken into account.

Article 8 will cease to be an afterthought in the decision-making process, considered only after a decision has been made under the immigration rules. Instead, the determination under article 8 will be made according to the immigration rules which the Government have put in place, and which Parliament has agreed correctly reflect the public interest. We have set clear and transparent requirements as the basis for the ability of a partner, child or adult dependant of non-European economic area nationality to enter or remain in the UK because of his or her relationship with a British citizen or a person with settled status in the UK.

Applicants will have to meet clear requirements in the rules which reflect an assessment of the public interest. Those requirements are a proportionate interference with article 8 because they draw on the relevant case law, because there is a strong rationale and evidence for the fact that they will serve the public interest, and because, if Parliament agrees to the motion—as I hope and expect that it will—they will reflect the correct balance between individual rights and the public interest.

No set of rules can deal with 100% of cases, and there will be genuinely exceptional circumstances in which discretion is exercised outside the rules. However, it is in the interests of both the public and applicants for there to be a clear system to ensure fairness, consistency and transparency. The public, applicants and caseworkers need to know who is entitled to come or stay, and on what basis, and who is not. If there is to be a system of that kind, there must be rules: rules that deliver sustainable family migration to the UK that is right for the migrants, for communities and for the country as a whole, rules that properly reflect individual rights and the wider public interest, and, above all, rules that are set in Parliament, and not by individual legal cases. With that in mind, I commend the motion to the House.

Question put and agreed to.

Resolved,

That this House supports the Government in recognising that the right to respect for family or private life in Article 8 of the European Convention on Human Rights is a qualified right and agrees that the conditions for migrants to enter or remain in the UK on the basis of their family or private life should be those contained in the Immigration Rules.