Immigration and Asylum Bill (Sixth sitting)

David Smith Excerpts

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.

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[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.

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[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.