Immigration and Asylum Bill (Fifth sitting)

Joe Robertson Excerpts

Committee stage
Thursday 15th October 2026 Public Bill Committees

[Anna Turley]

I thank my hon. Friend for asking a really important question, because it is right that we clarify this matter. The clause does not make it easier for overseas family members to enter the UK. Sponsors will still need to meet a very high threshold to argue successfully that it would be a breach of their article 8 rights if the Home Office refused their family member entry to the UK. Strict requirements for the procedure sponsors must follow to make an application, which will be set out in the immigration rules.

The focus on the rights of the UK sponsor is intended to reduce expansive interpretation of where article 8 rights are found to exist, and to prevent article 8 from becoming a route for those with tenuous family links to the UK. Too often, the focus can be on the circumstances of the applicants abroad, whereas the main legal question should be whether there is a disproportionate influence on the family life of the UK-based sponsor.

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

As I understand it, the purpose of this new provision is to focus on the rights of the person in the UK, to ensure that their right to a family life is respected according to their circumstances. But their circumstances will be that their other family member is living abroad; that is their family life. I do not understand why that pre-existing situation would suddenly infringe their human rights and give them the right to bring in a family member. Their circumstance, by nature, is people living in two different countries.

[Anna Turley]

The hon. Member makes a really important point. That is why we are trying to narrow the definition to those who are here in the UK, because for far too long it has been on the basis of a very tenuous link that family members can put in a claim from abroad to come to the UK. This measure narrows that definition while still ensuring that we maintain our obligations under article 8 rights.

The recent Court of Appeal judgment in IA and others v. Secretary of State for the Home Department provided helpful clarification around the correct tests to determine where article 8 family life exists, especially between extended family members. However, the judgment addressed an issue with article 8 family life being applied to a broader set of circumstances and relationships, which risked undermining our systems and rules. Despite these helpful findings, there remains a risk of inconsistent decision making, where the primary focus is not on the article 8 rights of the family member in the UK—the person within the UK’s jurisdiction according to ECHR case law.

The clause will add greater weight to the findings of the Court of Appeal and bring more clarity to decision making for entry clearance cases that engage article 8 family life. In IA, the Court of Appeal also reaffirmed the importance of the Government’s immigration policy when striking the right balance between an individual’s rights and the public interest.

In combination with the reforms in clauses 18 and 19, clause 17 makes it clear where the Government’s policy position lies in relation to the application of article 8 and where the Government expect the rules to be enforced. This will create a clearer, fairer and more controlled system. Details of the application process, including forms and evidential requirements, will be set out in immigration rules and supporting guidance.

Given the complexity of the clause, I will give Members an overview of each subsection. Subsection (1) creates a “sponsor human rights claim” in law by adding to the existing definition of a human rights claim at section 113 of the Nationality, Immigration and Asylum Act 2002. This has the effect of permitting a UK-based sponsor to appeal against a decision to refuse a human rights claim for their overseas family member. That is the starting point for future changes to the rules, forms and guidance.

Subsection (2) explains that further amendments are required to the 2002 Act for the clause to operate properly. Those changes are set out in subsections (3) to (7). Subsection (3) makes changes so that a sponsor human rights claim cannot be deemed inadmissible or not suitable to be considered, which is necessary because reforms in the clause mean that the UK sponsor is the applicant, not the overseas individual requiring entry clearance. As I will cover in relation to amendment 95, it would be inappropriate simply to refuse to consider a human rights claim because the UK sponsor is a national of a safe country. Such safeguards are designed to prevent improper protection claims from nationals of those countries.

Subsection (4) makes further changes linked to the fact that the clause makes the sponsor the applicant, not the person overseas. In effect, at appeal, the courts will hear all matters relating to the family member seeking entry to the UK and not include any immigration matters related to the sponsor. Subsection (5) creates an exception so that sponsor human rights claims do not need to have their appeals considered within the timeframe set out in the statute. That is because an individual will not be able to act as a sponsor if they are liable to deportation action.

Subsection (6) prevents a sponsor human rights claim being certified and denied an appeal simply because the UK-based sponsor is entitled to live in a safe state, primarily European countries. That would not be a fair application of the power where a right to family life was being relied on. The clause does not prevent a claim being refused and denied an appeal where the matters under consideration are clearly unfounded, for example because the relationship was a sham. Subsection (7) ensures that sponsor human rights appeals are not treated as abandoned or cancelled because the UK sponsor holds permission to be in the UK. Instead, an appeal is abandoned if the overseas family member is granted leave to enter or remain in the UK.

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[Anna Turley]

I share my hon. Friend’s view. When I saw this amendment, I thought the principle was really important. When we come to write the immigration rules, we would absolutely want to make sure that it is at the heart of them. We would not ever want to see someone convicted of domestic violence, anything to do with child protection or any of the issues outlined in the amendment ever being a sponsor to bring anybody into this country. I hope that the Committee is reassured by my placing all of that on record: when the immigration rules come to be written I would hope and expect to see that at the heart of them, with those protections in there.

[Joe Robertson]

The Minister says that her provision on the core cohabiting family member has been restricted by this definition to tackle the issue of people coming into this country. Can she tell us how many people are currently in the UK with a core cohabiting family member outside the UK? What is that figure so we can understand at least the potential pool of applications?

[Anna Turley]

I cannot give the hon. Gentleman the figures that he asked for. I gave some initial examples at the start of my introduction about the volumes that we are dealing with. Some 77,000 applications were granted on article 8 grounds last year. We know that 71% of the first-time grants on the basis of article 8 were to individuals who had entered this country illegally and were overstaying. We are keen that this issue forms a core part of the reforms.

[Joe Robertson]

Could the Minister perhaps provide that figure, either later on this morning or this afternoon, for how many people are in the UK with a cohabiting family member overseas as of today?

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[Blake Stephenson]

I am going to close, because I think I have spoken enough and time is pressing on.

Clause 17 creates a new statutory claim for sponsors, and new rights of appeal, which will become the main route for refugee families. It exempts those claims from the safe country filter. Its detail is left to rules that we have not seen, and it commences by reference to provisions that are not yet in force or that the Bill would repeal. Amendment 84, which would have left out the clause, has not been selected, so the Committee will instead decide the matter by voting on whether the clause should stand part of the Bill. For the reasons I have mentioned in this speech, which has gone on far too long, the Opposition will vote against it.

[Joe Robertson]

It is a pleasure to serve with you in the Chair, Mr Stuart. I am speaking a little earlier than I had expected—I misunderstood the shadow Minister. I thought he was just getting started, but it turns out that he considers his speech on the long side. Just for the record, I do not.

I am going to address the wider issue of whether the Bill, the clause and this set of amendments really do address the issue that the Minister, and indeed the entire Government, want them to. Their intention, as I understand it—I do not think this is controversial, at least given what the Government say they want to do—is to reduce the number of claims, to ensure that claims are genuine and to create efficiencies in the system. Of course, we all have those aims. I think that the Government have made a genuine attempt with the Bill, but as far as I can see, it will fail substantially.

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[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.

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[Melanie Onn]

The hon. Member has spent a long time focusing on clause 18. I wonder whether he is going to repeat his comments when we come to the next group of amendments.

[Joe Robertson]

I shall speak to the next group when the time comes. I do not make any apology for focusing on what I see as a major flaw in the legislation. I do not have a political disagreement with the Government; I just think that what they are trying to do is not achieved by this provision. I am certainly not here to give an overall appraisal of the Bill or of this group. That is for the Minister and the shadow Minister. As a Back Bencher, I am here to try to examine, explore and understand what I see as a weakness in the Bill. That is my job in Committee.

[Melanie Onn]

The hon. Gentleman is clearly misunderstanding, because this is not what we are meant to be discussing right now.

[Joe Robertson]

I have it right in front of me. I think the wider points have been made. The hon. Member is obviously desperate to make the decisions that a Chair would ordinarily make. Maybe one day she will be elevated to the position of chairing a Committee. If she would like me to repeat everything I have said, I will be happy to do so in this afternoon’s sitting.

I am slightly reluctant to stop now, because it looks like I have wilted in the face of an intervention from the Government Benches, but I had come to the end of my contribution. I hope I have made my point, even if it is not agreed with.

[Anna Turley]

I thank the hon. Members for Mid Bedfordshire and for Isle of Wight East for their very thorough comments. For me, this absolutely explains the benefit of line-by-line discussion of a Bill. There have been important challenges and critiques, and I will do my best to answer as many as I can—I think the shadow Minister must have had more than 20 or 25 questions; I will endeavour to write to him and the Committee on any that I accidentally overlook.

I really appreciated the statements from the hon. Member for Isle of Wight East, but I think my hon. Friend the Member for Great Grimsby and Cleethorpes was right: he did stray into clause 18, which we will come to this afternoon. I took note of his views and look forward to responding to some of those later.

There is a lot to cover, so I will do my best to race through it. We will have a longer conversation this afternoon about the ECHR, so I will not pre-empt my comments on that. I do want to push back on the accusation that the legislation will not make a difference. At the moment, we have a free-for-all. Courts are basically over-interpreting Strasbourg. There is no real codification in this country of what the right to a family life means, and we are seeing a huge number of cases, as we have discussed. The point of the Bill is to ensure that our provisions will be no different to the position under Strasbourg but will realign the domestic position, because we are currently being far more generous than our international obligations require. I think the Committee can agree that it is important that we do not over-interpret what Strasbourg suggests.

I appreciated the challenge from the shadow Minister about the 2014 Act and not reinforcing any previous errors, but the Government provisions reflect more up-to-date case law, which was not captured by that 2014 Act—for example, the weighting provisions, which will apply to all of family life. I hope, and am sure, that we will have more success than the 2014 Act had.

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[Joe Robertson]

If the Minister’s position ends up being that there is no data, I will take that. To be clear, I am asking for the data of people residing in the UK who have a family member who is not a British citizen and who has no right to be in the UK, be they a spouse, civil partner or child. If it is the case that we simply do not have that data, obviously I will accept that, but the question remains on the table.

[Anna Turley]

I completely appreciate where the hon. Gentleman is coming from, because I know he wants to get a sense of how many people could and would apply, but it would be impossible for us to know without knowing the family circumstances of everyone in the country. What we can do is best extrapolate from the applications that have been made as to whether they would fail or pass our new tests. I reassure him that it will be a high bar; the majority will be refused if they and their overseas family members do not meet the rules. Article 8 is a safeguard—that is what the Bill maintains—not a gateway.

The shadow Minister, the hon. Member for Mid Bedfordshire, referenced the publishing of the modelling. He referred to the representative sample of 3,252 article 8-related applications. That is an internal sample that has not been published due to personal data sensitivities, but I commit to write to set out our data on article 8 for the Committee.