Immigration and Asylum Bill (Sixth sitting)

Debate between David Smith and Siân Berry

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.

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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.

Immigration and Asylum Bill (Third sitting)

Debate between David Smith and Siân Berry

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.