Immigration and Asylum Bill

David Smith Excerpts

2nd reading
Monday 13th July 2026 Commons Chamber

[David Smith (North Northumberland) (Lab)]

Let us be straight: immigration is a good and necessary thing for our country. Successive waves of immigration over hundreds of years have helped make Britain the country we are, whether we are talking about the Huguenots fleeing French persecution in the 17th century, or the West Indians answering Britain’s call for workers in the aftermath of world war two. However, it is also true to say that preceding waves of immigration have been small compared with the size of the population, and the pace has been relatively slow.

Today, many Brits hold two positions simultaneously. We want to be a generous, open and welcoming country, but we are also concerned about the lack of control that successive Governments have had over our borders. In the last five years, over 460,000 people have claimed asylum in the UK. A decade ago, that figure was 165,000, and the last Government allowed net legal migration of 2.5 million people in just four years. We must be in no doubt: if we fail to achieve a just and fair system, we will undermine public support for our asylum system, and there is a risk that the general population will turn away from our being the generous and compassionate country that most of us consider the UK to be.

I could talk about many things in the Bill that I think are good and necessary, but I will talk about just one, which is the introduction of requirements for asylum seekers to contribute financially towards the costs of our asylum system, as long as doing so would not push them into destitution. When I was leading a homelessness charity before entering Parliament, we supported a young man called Mobarak, who was only 18. He had come to the UK from Sudan via Libya and Malta. When we asked him what he wanted to do, he was clear: “I want to be a plumber,” he said. Let us not deny people such as Mobarak the dignity that they deserve. Let us give them the chance to contribute to the society that has taken them in as soon as they can. Indeed, in my experience, what people who have been welcomed into this country as refugees most often want to do is make a contribution to the country that has welcomed them.

I give my full support to much of what else the Government are doing to secure control of our borders, including community sponsorship schemes, through which they are creating the first ever safe and legal routes to this country. The Government are picking up the pieces of the mess that the previous Government made. The only way we can restore the bonds of solidarity and compassion between citizen and asylum seeker is by restoring trust that the system is fair, effective and based on contribution. That is what the Bill seeks to do, and I fully support it.

[Several hon. Members rose—]

Immigration and Asylum Bill (Third sitting)

David Smith Excerpts

Committee stage
Tuesday 13th October 2026 Public Bill Committees

[Siân Berry]

Amendment 65 to clause 1 would allow judicial review of decisions. It would remove the provision in the Bill that excludes all judicial review of IIAA appeal decisions. Clause 1(8) is a so-called ouster clause, as the explanatory notes confirm. It is designed to immunise the IIAA’s appeal decisions from judicial review in the High Court. The purpose of the amendment is to remove the Government’s attempt to undermine the rule of law.

There will be two ways to challenge an IIAA appeal decision in the Bill as it stands. The first is that the IIAA can review its own decisions, under clause 6, and the second is that the upper tribunal can hear an appeal based only on a point of law, under clause 7. I hope we can agree that judicial review is a mechanism of fundamental constitutional importance and therefore should be restricted in only very limited circumstances. The Ministry of Justice has referred to judicial review as

“the rule of law in action”.

It ensures that public bodies act only in accordance with their legal powers and with respect for our human rights. The Home Office’s wish for faster and cheaper appeals does not come above the rule of law.

Ousting judicial review is unnecessary and disproportionate. Where there is a suitable alternative remedy, such as an appeal to the upper tribunal like the one for which the Bill provides, the High Court will normally refuse permission for a judicial review anyway. That is because the High Court considers that the alternative remedy will protect the rule of law. If the High Court considers that the upper tribunal appeal in clause 7 is sufficient, there will rarely be judicial review cases. Retaining the claimant’s ability to apply for judicial review would simply mean that the High Court could grant permission in residual cases where it believed that an upper tribunal appeal would not be an effective alternative remedy.

Clause 1(8) attempts to remove that residual right entirely. It is a rare absolute ouster clause, which does not permit judicial review of an IIAA appeal’s decision in any circumstances. Even the previous Conservative Government, when creating an ouster clause in section 1 of the Judicial Review and Courts Act 2022, retained access to judicial review in some circumstances. Clause 1 of this Bill is constitutionally exceptional, and I would like the Minister to explain why this absolute exclusion from justice is deemed to be okay for those seeking asylum, when even the previous Government would not apply it to unnaturalised citizens.

[David Smith (North Northumberland) (Lab)]

The core point of the hon. Lady’s speech is the rule of law, which all members of the Committee support, but does she accept that, first, we are talking about the appeals process? At this point, they have already appealed—that is one opportunity that someone seeking asylum has already taken to question the decision. Secondly, there are two other ways in the Bill through which a person seeking asylum can have a decision reviewed. Some of the hon. Lady’s rhetoric does not do justice to the Bill.

[Siân Berry]

I appreciate that, and I have laid out the possible alternative remedies, but judicial review is an essential backstop. I do not see why the Government are trying to remove it. This is constitutionally exceptional and I want the Minister to explain why it is okay.

This measure will not only undermine the rule of law; it will inevitably provoke litigation in the courts about how this ouster clause should be interpreted and effected. It is concerning that the Government want the IIAA, which is a novel—experimental, even—non-expert body institutionally close to the Home Office, making life or death appeal decisions, to be made completely immune from judicial review at the outset. It demonstrates the Government’s continuing and concerning prioritisation of speed over the rule of law and justice, which we have seen in other Bills. In those circumstances, my amendment is completely necessary. It would ensure that judicial review remained available in those cases where the High Court believed it was necessary. I hope that all Members will support it.

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[Siân Berry]

I will speak to why clause 1 and schedule 1 should not form part of the Bill. Although I will not speak to every clause, all these reasons equally apply to the rest of part 1, which deals with the creation and implementation of the IIAA.

It is a real shame that this policy has not yet become another U-turn from this Administration. I compare this Bill with the Courts and Tribunals Bill, particularly how adjustments were made following feedback from the legal profession and human rights experts on the establishment of truncated legal process and rights, which was one of the Bill’s most misconceived parts. After the Government pressed on with those plans during the Bill Committee, on which I also sat, today it is being debated on Report without several of the clauses that would have put jury trials out of reach for far too many offences. Although they were quite rightly not selected, I tabled amendments to this Bill that would have removed part 1, which creates the independent immigration appeals authority and all its workings, and I look forward to seeing such proposals also being removed before its Report stage.

The Government said that clause 1 and the rest of part 1 are needed to clear a backlog of more than 150,000 appeals, which currently take an average of over 60 weeks to decide. That backlog is real, and it is important that actions are taken to clear it, but part 1 misconceives the issues. Evidence shows that delays are driven by poor initial Home Office decisions and a severe shortage of legal aid, but part 1 addresses neither.

Instead, the Bill would replace a working, independent judicial tribunal with a costly body that risks being ineffective and lacks independence and fairness. Above all, creating unfair processes and further adding to a hostile environment for asylum will not help stop the boats. In its written evidence, the United Nations High Commissioner for Refugees called for

“a comprehensive strategy addressing the drivers of irregular movement, expanding safe, regular pathways, strengthening international responsibility-sharing, and enhancing practical cooperation with European and other partner States.”

In oral evidence, the Government’s own National Crime Agency had no analysis or explanation about the real drivers of small boat crossings, being concerned only with the Government’s approach of layering an even harsher deterrence and enforcement regime on to the real causes. It is those real causes that need attention.

I want the Government to listen on this issue, and that depends on Ministers hearing the arguments—that is what this Committee is for. I will be here throughout the Committee to highlight the points made by experts on the needs and real lives of those seeking asylum. They are talking about the difficulties they face in gaining a hearing for their case or in dealing with Home Office processes. In particular—this is something we all know as MPs, because we try to help constituents navigate this system in our casework—they talk about how poor the decision making in the Home Office is, and how the Bill does nothing to improve it.

I want to bring some evidence from Brighton, given by one of a large number of charities that are providing direct support to refugees, as befits a city of sanctuary. The organisation One Church, which does a lot of work in this area, told me:

“The impact of UK immigration policies for the past 15 years has at times crippled our ability to do business and operate a charity focussed (ironically) on marginalised people across Sussex. The escalating cost of filing for visas, the precarity and punitive nature of asylum claims and other proceedings, and the emotional devastation when facing all-too-common Home Office errors have all contributed to outcomes including business costs we can’t afford, charitable work that we’ve had to stop or rein in, and full-on mental health breakdowns that rupture communities and cost incalculably more in long-term complications.”

One Church gave me several examples, but here is one:

“An asylum seeker from Zimbabwe…was unable to earn income or work a job for more than eight years—even as he also was barred from public funds—while his own appeals went through the Home Office system, requiring the community to house him for free and support his basic living needs for many years. He ultimately won his case as well, including a public apology from a judge, but struggled to cope with the effects of such a long stint in a precarious and dependent position. This entire cascade of events was due to an unclear Home Office deadline that meant his paperwork was alleged to have been filed less than 24 hours late.”

[David Smith]

I thank the hon. Lady for the powerful story that she has just shared. I ran a homelessness charity before becoming an MP, which housed people who were refugees or seeking asylum. Is not expediting the process—stopping appeal after appeal—as much about supporting those who seek asylum, doing justice to them, as it is about wider society?

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[Siân Berry]

The hon. Member is right that, sometimes, appointments of supposedly independent commissioners are made—I had experience of that recently in relation to equalities—but there is often a political element to the appointment and the direction they seem to take. We must always appreciate that and guard against it. Taking the appointments one step away from the Home Office may not completely remove the possibility of that, but the Judicial Appointments Commission is a robust body doing a similar job already and should have this role. That is what my amendment seeks to introduce. The Judicial Appointments Commission has two decades of experience in appointing independent judges, and I think it is the body best able to ensure the independence of candidates for adjudicators.

[David Smith]

Before the hon. Lady moves on, I wish to build on the point made by my hon. Friend the Member for South Norfolk. It is a well-established principle within governance that quasi-judicial bodies are appointed by the Government. For example, the chief planning inspector is appointed by the Secretary of State for Housing, Communities and Local Government. The chief inspector of prisons is appointed by the Secretary of State for Justice. The Parliamentary and Health Service Ombudsman is appointed by the Prime Minister. Furthermore, the Bill outlines that only the first chair and professional standards officer will be appointed by the Home Secretary. Is the hon. Lady arguing that all those other appointments made by Government have the same illegitimacy?

[Siân Berry]

All I am pointing out is that the Home Office’s record on this kind of thing is not brilliant, and that there exists a body far more appropriate than the Government’s proposal for direct appointments. I do not quite understand why Members are arguing so hard against that, when I am certain that the Judicial Appointments Commission would be happy to take up the role.

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[Anna Turley]

I am afraid I completely disagree with the hon. Gentleman. The decisions that we ask our magistrates to take, which may result in restrictions on liberty, are life-changing. I think they are just as important as the decisions that we are discussing.

[David Smith]

To reiterate the point, as someone who stood to be a magistrate and was accepted, I can say that there was no requirement for legal qualifications, but there are still really important decisions that have to be made. Also, as I understand it, in the current system, first-instance asylum decision makers in the Home Office do not require legal qualifications, so this is not new.

Immigration and Asylum Bill (Fifth sitting)

David Smith Excerpts

Committee stage
Thursday 15th October 2026 Public Bill Committees

[Blake Stephenson]

Yes, and fundamentally I think the clause is tinkering around the edges with the application of the ECHR. We have been here before; I will come on to this later in my speech. Successive Governments have tried to do this, but my fundamental concern is that the clause will not work.

Let me turn first to the drafting. The explanatory notes say that overseas article 8 applications must be made by the sponsor, but the clause defines a claim as made

“at a place designated by the Secretary of State”.

As the House of Commons Library points out, it deals with the appeal stage; it does not say how claims are lodged in the first place. Minister, where in the Bill is the provision that stops an overseas family member applying? Which places will be designated and by what regulations, rules or guidance?

Who holds the right of appeal today? In written evidence submitted to the Committee, the Bar Council stated:

“Until now, an application for entry clearance to come to the UK had to be made by the person overseas and any appeal against refusal had to be brought by them.”

Clause 17 would now give the UK-based sponsor an appeal of their own. Does the Minister accept that clause 17 introduces a right of appeal that currently does not exist today? If so, how is clause 17 in any way, as she says, tightening the rules?

Secondly, I want to discuss the exemptions. Clause 17 leaves inadmissibility and certification in place for other human rights claims. Why should a sponsor claim be exempt from both? On amendments 95 and 96, I note that the Government have adopted our amendment 96, for which I am grateful. I am sure that they did so for their own good reasons, not just to copy and paste an Opposition amendment. Those amendments were tabled to remove those exemptions. They were probing amendments, but let us assume that amendment 96 probed sufficiently for it to be taken on board by the Government. If the Minister cannot explain to the Committee for what reason a sponsor claim would be treated more favourably than any other human rights claim, the exemptions should go. Perhaps she could address that point on amendment 95 in more detail.

There is a point of drafting to consider in whether the clause actually works at all. Clause 52(5) ties the commencement of clause 17(3) to section 59 of the Illegal Migration Act 2023, and clause 17(5) to section 50 of the Border Security, Asylum and Immigration Act 2025 when it comes fully into force. The Minister may not have the answers to a complicated drafting question, but perhaps during the course of today’s debate, her civil servants might provide an answer. I note that section 50 of the Border Security, Asylum and Immigration Act is not yet in force, and that schedule 1 to this Bill would repeal it. Would the Minister explain how clause 17(5) is meant to commence? If there is an error in drafting, will it be corrected?

I will move on to the interaction with family reunion. Three witnesses in our oral evidence sessions—Vicky Tennant of the United Nations High Commissioner for Refugees, Jon Featonby of the Refugee Council and Angela Afzal of the International Rescue Committee—took views very different from the Opposition on the Bill, but their evidence is relevant as we scrutinise the clause. Ms Tennant told us that the Bill’s presumption of cohabitation

“is a difficult threshold to make”––[Official Report, Immigration and Asylum Public Bill Committee, 15 September 2026; c. 9, Q7.]

in the refugee context, particularly given the suspension of the refugee family reunion route. Mr Featonby estimated that probably 20,000 people have been unable to apply since that route was suspended just over a year ago. Ms Afzal warned that families could be encouraged to resort to smugglers to reunite.

The written evidence goes a bit further. The Immigration Law Practitioners’ Association tells us that the human rights claim

“may be the only realistic remaining path”

for refugee families while the dedicated route is suspended. The Bar Council told us that it will be the “only practical gateway”. The British Red Cross highlights that 12,888 family reunion visas were granted in the year to June 2026, and that the core protection status of cause 21 is expected to carry “no family reunion rights” at all.

Although I draw different conclusions, the dedicated route has been suspended, and the clause creates a statutory sponsor claim with a right to appeal and without safe country filters. The people with expertise in this field who gave evidence expect that it will become the main entry route, so are the Government not simply closing one back door and opening another? What assessment has the Home Office made of those numbers?

[David Smith (North Northumberland) (Lab)]

It is obviously not on the face of the Bill, but does the hon. Gentleman recognise that the Government’s intention to introduce safe and legal routes would ultimately solve the problem that he is describing, as raised by the witnesses?

--- Later in debate ---

Let us look at the route for a sponsor to make a right to family life claim in order to bring in a family member who does not currently reside in the UK and may never have been to the UK. That right applies not only to British citizens but to anyone who resides in the UK legally, and there is a great variety of legal reasons why someone might be here. I ask the Minister—I am grateful for her undertaking—to go away and try to provide us with a very simple figure: how many people currently residing in the UK have people overseas who are defined as a “core cohabiting” family member? We need to understand—not only the Committee and Parliament, but the public—how many core cohabiting family members, as defined in the Bill, currently live outside the UK. I accept that not every single one of them has a right to come to the UK, but every single one of them forms part of the pool of people who could make an application or have an application made on their behalf, and the Home Office really should have that figure.

[David Smith]

I understand the point the hon. Gentleman seeks to make about the potential pool of people, but is that not theoretical? The pool of people around the world who may be refugees is tens of millions. Ultimately, it is up to the Government of this country to determine the criteria for someone to be accepted as a refugee. It seems like a slightly philosophical point, if he does not mind me saying so.

[Joe Robertson]

I do not accept that it is philosophical. The pool of people in the world who could make an asylum claim runs to hundreds of millions, and possibly billions, because, tragically, a lot of the world is very unsafe and there is a lot of inhumane treatment and activity. As much as our hearts want us to try to improve the lives of those people, we would probably all agree that the UK cannot take in those vast numbers. However, I am addressing the more limited provision that the Government have put forward; I am talking not about the pool of people in the world who may be suffering inhumane or degrading treatment, but about the “core cohabiting” family members overseas who have a family member in the UK who might want to make an application on their behalf under the newly qualified right to a family life in proposed new section 117AA of the Nationality, Immigration and Asylum Act 2002.

Let me turn to the new definition of a core cohabiting family member. Those words might prompt a debate of many hours or days, but the Bill helps us. It tells us that a “core cohabiting family” member of Person A is

“(a) A’s spouse, civil partner or partner;

(b) where A is a parent, A’s children who are under the age of 18;

(c) where A is under the age of 18, A’s parents.”

That makes sense: we are talking about children, parents, partners or civil partners. However, if we take the example of a civil partner, the provision would, as I understand it, allow someone in the UK—remember, that person may not be a British citizen, but someone who has a right to be here—to make an application to bring their civil partner, who is living outside the UK, into the UK, on the basis that to do anything else would be to infringe their right to a family life.

The Minister said pointedly that the focus is on the claim made by the person already here and their circumstances, rather than on the person outside the UK, but we know the circumstances of the person in the UK making such an application for their civil partner. Their family circumstances are that they are living a family life in two different countries; that is the pre-existing arrangement when they make the application. To most of us, though not everyone, that might seem unusual, but those are the circumstances. I do not understand why, if we have a system based on the circumstances of someone who has made an application, that application should seek to rearrange their family life and say, “We’re no longer happy to live in two different countries; we want to live in the same country—and, by the way, that same country must be the UK and not the other country.”

This provision does not seem to be person-focused at all; it seems to have been drafted in effect, almost as of right, to allow someone’s civil partner into the UK. If we run the argument the other way and say, “Of course two civil partners should be able to live together in the same country and, indeed, in the same household. Isn’t that what a right to a private family life means?”, the case will be won by the sponsor making the application, because they will say, “How can you possibly expect me to live in a separate country to my civil partner? That is inhumane and unfair. You wouldn’t expect it of an ordinary citizen in the UK, so why do you expect it of me? It is discriminatory. It is against the provisions in the Human Rights Act and the ECHR,” and so on. It seems to me that all those cases will be won on that basic assertion, and that what this provision really does is allow someone to bring in their civil partner in all circumstances, as of right.

Indeed, it may be worse than that. If that is in effect what is happening, we may as well say it, but what we have here is law that will be contested in court. If the Government contest each case, that will lead to a huge administrative process and a huge court backlog and appeals issues, just to end up with a set of decisions that all say the same thing: “Yes, of course, that overseas partner can come in.”

Setting that aside—and that is the most certain part of the provision, even though I argue that it is inherently uncertain and that it does not achieve its objectives—there are other circumstances set out in the provision in which someone does not need to be a core cohabiting family member. Proposed new section 117AA(1) says that the provision is “normally limited” to a core cohabiting family member, so there will be abnormal situations in which someone can come into this country even if they are not a core cohabiting family member. That, surely—obviously—is the gateway for Strasbourg jurisprudence. I acknowledge the Minister’s honesty when she said earlier that we—and by “we” I think she meant the British state rather than her Government particularly—as a country have been guilty of over-interpreting Strasbourg law, but that provision in her Government’s Bill is the gateway for Strasbourg law to be applied in the ordinary way that it has been over years, and that is the issue we are trying to tackle.

The Bill gives us some help on what constitutes an abnormal situation—a situation where a non-core cohabitant family member could come in. To quote proposed new section 117AA(4)(b) of the 2002 Act, that is where

“the circumstances are such that there is an additional element of dependency”

between two family members. But there could be an additional element of dependency between anyone residing in the UK and a family member overseas. Let us remember that we are not talking about core cohabitants now; we are talking about any family member. That could be a cousin, uncle, aunt, second cousin or third cousin—who knows?

Who will decide whether there is an additional element of dependency? Well, it will be based on the facts. The applicant will have to present a whole set of circumstances, including the family relationship that existed before anyone ever got to the UK and how much it meant to them emotionally or financially: “Yes, normally third cousins are not close and interdependent, but you must understand the culture where I am from. We had a relationship that was more like brother and sister or husband and wife, and therefore I should be successful.”

Who will decide that? It will be the bureaucratic infrastructure of the state, which is already overburdened, be it the Home Office, which typically makes a decision that gets overturned, a new system of judges appointed on the advice of the Home Office, or the existing appeal structure all the way up through the Court of Appeal, the Supreme Court and the interpretation of Strasbourg jurisprudence, including the Human Rights Act and the fundamentals of the ECHR. All the things that currently challenge our ability to say no are brought in or retained by this provision. Even if a number of claims are unsuccessful—and I am sure a number will be—the number of cases that will go through the courts to establish their success or otherwise will continue to overburden the system and give everyone at least the hope that they might be successful, even in hopeless cases.

I say as a former lawyer—not a human rights lawyer or one who has been involved in this type of case—that this sort of provision is a gift to the world of ongoing litigation. Legal professionals try to construct a strong case with new legislation, as is their legitimate role. There is nothing like a bit of new legislation for the legal profession to get their teeth into. They try to create new case law to interpret it and find out what it is all about. Very often, litigation increases rather than decreases, at least in the short to medium term, when a novel provision like this one is introduced.

An abnormal, or not normal, family situation is not defined, but there are a few examples of an abnormal situation where an applicant would be successful. To paraphrase proposed new section 117AA(5)(b)(i) to (iii) of the 2002 Act—we can see just how complicated the Bill has become to try to achieve an aim that I do not think it will—one example is where there is mental illness in the person who is outside the UK, and care and support would need to be provided by the person in the UK. An application is therefore likely to be successful if the sponsor in the UK says: “My family member who is not in the UK”—they do not have to be a core cohabiting family member; they just have to be family, whatever that means—“has a mental illness.” Presumably whether they have a mental illness or not will be judged by a healthcare system outside the UK, which might be very different from our own, with a very different standard of what counts as a diagnosis. “That person has a mental illness and there is no care or support available to them other than me, a family member in the UK.” Again, they might be in a country with a health service that, almost universally, does not provide sufficient care and support to people with mental illness. That could, in reality, be quite an easy application to make.

Immigration and Asylum Bill (Sixth sitting)

David Smith Excerpts

Committee stage
Thursday 15th October 2026 Public Bill Committees

[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.

--- Later in debate ---

[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.

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[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.

--- Later in debate ---

[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.