Immigration and Asylum Bill (Sixth sitting)

Joe Robertson Excerpts

Thursday 15th October 2026 Public Bill Committees

[Joe Robertson (Isle of Wight East) (Con)]

Too generous.

[Ben Goldsborough]

As the hon. Member very kindly name-checked my speech yesterday, I need to thank him first of all. He says there is no issue of “Lock, Stock and Two Smoking Barrels” when leaving the ECHR, but there is an issue concerning our colleagues and friends on the island of Ireland. What would be the result of leaving the ECHR when it comes to the Good Friday agreement? There is no question about it: Lord Wolfson may say that there may or may not be an issue with that, but the Irish Human Rights and Equality Commission has noted that there would be an issue, and we have the history as well. Anything that comes back with this idea that, “Well, Australia and New Zealand don’t operate within these systems,” does not take into account the history of the island of Ireland.

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[Siân Berry]

Much appreciated, Mr Twigg.

I would say that the best way to stand up to toxic rhetoric is to stand up to it. We are familiar with the concept of the Overton window, and I am distressed that a Labour Government have been moving in this direction through their immigration policies. As I said at the beginning of my speech in the previous debate, the Government ought not to bring forward this Bill or row back on other civil liberties and human rights legislation—that would be the right thing to do. I am a lone voice on this Committee, but that cannot be right when we know that people around the country want migrants to be welcomed and want to see more unity, inclusion and social cohesion. The way to build that is not to hear the argument about how article 8 and the ECHR need to go and then do a little bit of that. The answer is to stand up to the rhetoric and build a better country.

[Joe Robertson]

Will the hon. Lady give way?

[Siân Berry]

One more time, then I will press on to the end of my speech.

[Joe Robertson]

I agree with the hon. Lady that there is some toxic rhetoric around this, although not from Members on this Committee. Does she not agree nevertheless that there is a problem with immigration and asylum in this country, and that part of the problem is that the numbers are too high?

[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.

[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.

[Joe Robertson]

It is a pleasure to serve with you in the Chair, Mr Twigg. I will address clause 18. I must confess that I have a slight tendency to stray, but I am comforted by the fact that the hon. Member for Great Grimsby and Cleethorpes will be on it and ensure that I stick to the grouping before us.

I made some comments on clause 18 in the morning sitting, so what I will say now is additional. I will focus on situations in which a right to family life can still be argued under the Bill, even though it seeks to restrict human rights applications based on family life. Those are not situations involving a core cohabiting family, but ones in which a sponsor in the UK who does not necessarily have a UK passport but nevertheless has a right to reside here applies for somebody—not necessarily a family member—who lives elsewhere with no right to come here, has a mental illness, needs the sponsor’s support and cannot find that support at home. That seems to me the widest part of the Bill, allowing a great range of claims to be made and increasing or maintaining the backlog at the Home Office and in the courts.

It seems that this mental illness provision could create a dodgy market of mental health clinics elsewhere in the world, set up specifically to provide paperwork for an application—that is not fanciful. We know the huge pressure from the black market abroad, involving people smugglers and all sorts of behaviour that is not just immoral but illegal and abhorrent, to get people into this country, because of course it is a great place to live and build a life. We know that the pressure is already there; that is why we have such high numbers coming. Setting out in law a mental illness route that seems to have such a low bar for evidence could lead, I think, to an entirely new dodgy avenue opening up.

Let us envisage a very real type of application. Someone in this country says that a family member or close friend living in another part of the world has a mental illness and a certificate to prove it. However, that certificate could very well come from a clinic that does not adhere to the standards of the NHS, the Care Quality Commission or anything that could be recognised in this country. That bit of paperwork—the bottom of which says, by the way, “Sorry, there is no support at home”—could give rise to an application. Without any evidence to the contrary, I do not see how the Home Office—or indeed a court—could deny that application.

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[Anna Turley]

I am afraid that I disagree. I remind the Committee that, just because family life is established, it does not mean that an individual will automatically be able to remain in or enter the UK. Instead, all cases where family life is found to exist will also be considered at the second stage test, where the courts will have to consider whether it is in the public interest to refuse leave to remain or enter.

[Joe Robertson]

Will the Minister give way?

[Anna Turley]

I will just explain a little bit more, and I will hopefully answer the hon. Gentleman’s point. The word “normally” is deliberate and necessary. It allows us to establish a clear and deliberatively restrictive framework in which article 8 family life will ordinarily be confined to the core family while retaining the limited flexibility required for ECHR compliance.

Family relationships, as we have said, do not always fit neatly in formal categories or involve cohabitation. In exceptional cases, a relationship outside the core cohabiting family may, in substance, be akin to one within it. “Normally” enables a court to recognise genuine family life in those limited circumstances, based on the facts of the individual case. Removing it would turn a strong presumption into an inflexible rule, which would risk the exclusion of genuine family relationships and therefore be incompatible with the ECHR, potentially opening us up to even more litigation.

Crucially, this is only a threshold test. Establishing that family life exists does not mean that an article 8 claim succeeds, or that an individual has the right to remain. It simply means that the court moves on to the next stage to consider whether interference with that family life is justified and proportionate, taking account of public interest. Accordingly, the Government do not support the amendments.

Amendment 103, also tabled by the hon. Member for Mid Bedfordshire, seeks to remove subsection (6) of this clause, on the basis that it undermines the effect of subsection (5). I do not, however, accept that that is the case. Those two provisions address different questions: subsection (5) clarifies what cannot independently establish family life between adult extended family members, while subsection (6) preserves the fact-sensitive assessment that is required once family life is engaged.

Subsection (5) makes it clear that financial support, emotional reliance, illness and concern for someone living amid war or instability do not, when taken independently, establish the necessary dependency. Those circumstances do not, however, cease to be relevant for every purpose. If family life is established, the court must then undertake the separate public interest and proportionality assessment.

Subsection (6) therefore provides an important safeguard to ensure that, at that stage, the full factual circumstances can be considered when balancing any interference with family life against the public interest. It also protects the Home Office’s freedom to consider those factors when arguing that the public interest requires a refusal of leave.

Turning to the Government amendments, it is right that children are given additional safeguards in article 8 decision making. Given those well-meaning protections, a tenuous relationship with a child can be used by an adult to remain in the UK. The first step to prevent people from relying on weak parental links to children in article 8 claims is to ensure that the genuine and subsisting parental relationship test under this clause operates as intended.

Government amendment 44 therefore makes it clear that a parent does not normally have family life with a child under the age of 18 for the purposes of article 8 unless there is evidence of a genuine and subsisting parental relationship. It broadens the application of the test so that it applies consistently to all parent-child relationships involving a child under 18, regardless of whether the parent and child live together. That clarifies what is relevant: the substance of the parental relationship, not simply the living arrangements. The amendment aims to reduce the scope for weak or limited parental relationships to be relied on in article 8 claims, including where cohabitation has been resumed opportunistically for immigration purposes; it does not remove protection for genuine parent-child relationships. Where there is evidence of a genuine and subsisting parental relationship, family life will continue to be recognised.

Government amendment 45 builds on amendment 44 to ensure that the genuine and subsisting parental relationship test under the clause will have its intended effect of preventing people from relying on weak parental links to children in article 8 applications. Government amendment 45 provides additional detail on how courts and tribunals should assess whether a parent has a genuine and subsisting parental relationship with a child for the purposes of article 8. It sets out factors that may be relevant to that assessment, including the nature of the relationship, the duration and frequency of contact, and whether contact has recently been established or re-established. The amendment aims to promote greater consistency in the application of the genuine and subsisting parental relationship test, ensuring that courts and tribunals focus on the substance of the relationship; the amendment does not prevent genuine parent-child relationships from attracting article 8 protection. Courts and tribunals will continue to consider all relevant circumstances in each individual case.

[Joe Robertson]

What would happen if someone were living here, but their child was overseas with the other parent—they were cohabiting there, not with the parent here—but the parent overseas died? What happens to the child? I cannot see a provision by which the child can come here, because there was no core cohabiting family arrangement.

[Anna Turley]

Exactly such a circumstance is why we have provided flexibility within the Bill. The individual case will be assessed under article 8. In such a situation, there is space for that individual case to be assessed. Together with clause 19, Government amendments 44 and 45 provide a clearer and more consistent framework for determining whether removing an individual with a tenuous relationship to a child in the UK is compliant with article 8.

I will just add something on the key principles behind clause 18. The clause establishes clear boundaries for where family life exists, consistent with Strasbourg case law, providing the foundation on which clause 19’s strengthened public interest test is applied. Together, clauses 18 and 19 will ensure that article 8 is not used routinely to circumvent immigration rules, supporting a more ordered and controlled system where those who do not meet the rules are not routinely able to stay in the UK. Members have suggested that the clauses are too expansive and may widen where family life can be found to exist, but that is not correct. A recent Court of Appeal judgment reaffirmed the existing legal framework for assessing family life under article 8. Clause 18 provides greater clarity. The reforms will make clearer how family life and dependency should be assessed, promoting greater consistency in decision making and curtailing expansive interpretation of where family life can be found to exist. I had intended to talk more about the ECHR, but I shall not test the patience of the Committee.

Other points made during the debate included whether the clause was relevant or whether the courts would just ignore what we are trying to codify. Successive Governments have recognised concerns about how article 8 operates in the immigration system, but this Government are undertaking the hard work to understand the comprehensive reform required to restore order and control to the system. We are working within our international obligations to reset this balance, and to provide a more comprehensive and consistent framework to article 8 decision making. Clause 18 works alongside clause 19 by establishing the clear basis on which the Home Office can argue that family life does not exist before consideration of whether the public interest warrants a refusal of leave. Together, the clauses provide a clearer framework for how article 8 should be assessed to promote greater consistency in decision making and ensure that when considering article 8 immigration decisions, the courts place appropriate weight on what Parliament considers to be in the public interest.

In response to some of the other points made by hon. Members, the framing of proposed new section 117AA preserves the small degree of flexibility necessary for decision makers and the courts not to be constrained to determine claims made under article 8 that are inconsistent with the article. Reference was made to the definition of an eligible partner. That definition will be set out in rules and guidance; it is not appropriate to have that level of detail in primary legislation. We need to have flexibility to be able to change and respond to patterns of behaviour and abuse. One hon. Member spoke about young adults. The word “normally” in clause 18 is a caveat to preserve flexibility for young adults who have family life with parents.

I was asked for more evidential requirements; here some case studies might be helpful. The family immigration rules are intended to create a fair system that balances the important of protecting family and private life. When 71% of first-time grants are made to applicants who have arrived illegally or who have overstayed the time they are permitted to be here, it is clear that article 8 is not operating effectively. I was also asked about retrospective claims and whether the measures would impact people already in the UK. Clause 52(9) allows part 2 of the Bill to be commenced with retrospective effect; we will set out our plans for how the measures will be commenced in due course.

I was asked how the adjudicators would be able to interpret the complexity of clause 18 without legal training—something the Committee spoke about quite a lot in the first sitting of its scrutiny. Adjudicators will be properly trained, with all the safeguards that we talked about in the Committee sitting last Tuesday, to apply the new framework and immigration law. The authority will have legal support, underpinned by clauses 2 and 3 of the Bill. The hon. Member for Brighton Pavilion asked about interference. Clause 18 is not about whether interference is proportionate—that is assessed under clause 19. The grounds for interference, such as for the effectiveness of the immigration system, are consistent with ECHR case law.

Nothing in the Bill prevents individualised decision making; we have deliberately kept that ability, and that is a clear requirement of article 8 compliancy in decision making. Hon. Members also spoke about Home Office decision making. As I have made clear throughout the passage of the Bill, we will of course continue to work to improve decision making. The reforms in the clause clarify how family life should be assessed and strengthen the role of public interest in maintaining effective immigration control, which will help to improve decision making by providing the courts with greater clarity, consistency and predictability.

On mental illness and whether that is a route, it is correct that under proposed new section 117AA(4), family life can be engaged where a person suffers a mental illness or infirmity. However, they would need to be incapacitated to the extent that they need constant care and support, and there would have to be no other viable care options. Examples in established case law include where an adult or child becomes paraplegic after a serious illness, or where an adult or child suffers from Down syndrome and is fully incapacitated. It is worth remembering that the provision is only about establishing family life, and that the decision makers and the courts will go on to consider the public interest question. I hope I have answered all colleagues’ points, and I commend the clause to the Committee.

Question put, That the amendment be made.