Immigration Bill (Eleventh sitting)

Keir Starmer Excerpts

Thursday 5th November 2015 Public Bill Committees

[The Solicitor General]

We are talking about the 18-month period between 16 and a half to 18 years of age. That is the period we are dealing with. I have already made the point about age in previous debates, but I will develop the point I was making just now. For example, if a 17-year-old who lives in the UK with members of their wider family has made a human rights claim to stay that has then been refused, and if they have parents or family in another country to whom they can return and successfully establish their life there, these provisions might apply. To develop the general point about the interests of children, the welfare of children will continue to be a primary consideration in decisions by virtue of statute under section 55 of the Borders, Citizenship and Immigration Act 2009, so each case will be assessed depending on individual circumstances.

[Keir Starmer (Holborn and St Pancras) (Lab)]

The Solicitor General is dealing with a very important point and reassuring us that an assessment will be made, particularly when it involves children, but how precise will that assessment exercise be? How will the detailed circumstances be ascertained and what is the remedy if it is thought that a wrongful decision has been made?

[The Solicitor General]

The hon. and learned Gentleman has hit upon the more general point about successful appeals. It is wrong to assume that the reason for the number of successful challenges to Home Office decisions lies fairly and squarely at the door of the Home Office and any failures that it might exercise in using its discretion. We have due process, and he will of course be aware that when an applicant makes an application, they should do everything they can to provide the fullest evidence and information about their situation at the earliest opportunity. I would think that evidence about the welfare needs of children would be at the forefront of any applicant’s mind, or the minds of those who are instructed to represent them. It is therefore vital—this is a good opportunity for me to put this on the record—that everybody involved in such proceedings understands that early reliance on comprehensive evidence is essential if we are to avoid the issues that the hon. and learned Gentleman rightly raises.

On the handling of children’s cases, revised guidance has now been published following the recent Court of Appeal judgment, which we are well aware of, and is now available on the gov.uk website.

[Keir Starmer]

It may be my fault for not expressing myself clearly enough, but in relation to the assessment of the impact on a child who is required to appeal from abroad—which is a different assessment from the ordinary assessment of an impact on a child—how is that to be conducted? What is the guidance? For example, does the guidance say more than six months for a child under 10? Is separation from a parent acceptable or unacceptable? What is the guidance for the decision maker if they are presented with two children under 10 and a possible separation of six to 12 months? Are they told that that is okay or not okay?

[The Solicitor General]

The hon. and learned Gentleman has asked a specific question about the wording of the guidance. I am at a slight disadvantage because I do not have it to hand. It might be that I can get a response to him about that. However, guidance that goes into huge prescriptive detail on time limits or time indications is not really guidance. Guidance must give decision makers discretion and allow them to look individually on a case-by-case basis.

[Keir Starmer]

rose—

[The Solicitor General]

I will finish this point, then the hon. and learned Gentleman can by all means intervene again.

I want to give the Committee an example about individual circumstances. An example of where the welfare of a child might make a case unsuitable for certification by the Secretary of State is if the individual whose article 8 claim has been refused is acting as the primary carer for a child, even temporarily—for example, if the child’s parents had separated and the parent who is normally the primary carer is unavailable to take care of the child temporarily and the other parent is caring for the child while their appeal is being determined. In that example, welfare issues clearly come into play.

In each case, individuals will be asked to provide any reasons why the power should not be applied in their circumstances, which will be fully considered. Of course, they will be able to challenge the decision to certify; we must not overlook that important point. The decision to certify is an administrative decision that can be challenged by judicial review.

[Keir Starmer]

I want to probe the question of guidance. The Solicitor General’s example is of a primary carer. Unsurprisingly, it is not thought a good idea to certify in those circumstances—that case makes itself. The Children’s Commissioner published a report about a month ago about the impact of different rules, including the rules about the income requirement that must be met before a spouse can join a family, which focused on the impact on the child of not having access to one parent for months, and sometimes years. Has the Solicitor General or the Department taken those findings into account? They seem to be pertinent here, given the impact on a child of not having contact with one parent for a prolonged period.

[The Solicitor General]

The hon. and learned Gentleman makes a powerful point, but those sorts of considerations can be taken into account by the decision maker.

I now have to hand the guidance on the Nationality, Immigration and Asylum Act 2002 issued by the Home Office. The latest version is dated 30 October, so it is fresh off the printing press. The section 55 duty is described in paragraphs 3.6 to 3.8 inclusive, which I will read for the record:

“When considering whether to certify a human rights claim pursuant to section 94B, the best interests of any child under the age of 18 whom the available information suggests may be affected by the deportation decision must be a primary consideration.”

That is a very helpful start.

“Case owners must carefully consider all available information and evidence to determine whether or not it is in the child’s best interests for the person liable to deportation to be able to appeal from the UK. This is particularly relevant in considering whether deportation pending appeal would cause serious irreversible harm to the child. The case owner must also consider whether those interests are outweighed by the reasons in favour of certification in the individual case, including the public interest in effecting deportation quickly and efficiently.”

That is the balancing exercise in a nutshell.

Paragraph 3.7 might help the hon. and learned Gentleman:

“Case owners must carefully assess the quality of any evidence provided in relation to a child’s best interests. Original, documentary evidence from official or independent sources will be given more weight in the decision-making process than unsubstantiated assertions about a child’s best interests or copies of documents.”

Paragraph 3.8 states:

“For further guidance in relation to the section 55 duty, see…Section 55”.

It also contains links to an introduction to children and family cases and to criminality guidance for article 8 ECHR cases. I think that is a helpful encapsulation of the balancing exercise that decision makers have to carry out.

[Keir Starmer]

I want to explore that guidance. For clarity, if the assessment states that there will be serious harm to the child, but it would not be irreversible, that suggests that the decision maker would go ahead with the decision and certify. Is it right that the harm has to be serious and irreversible?

[The Solicitor General]

The hon. and learned Gentleman is right to read the words in that way. We do not have the words “and” or “or”—we are back to “and” or “or”. He and I like these arguments because they are important; we do not indulge in them for the sake of semantics. However, what I am referring to is guidance, so it takes a different form from primary legislation or secondary legislation. It allows decision makers to get clear in their minds what the balance should be. There is a public interest in swift and efficient deportation. The party that the hon. and learned Gentleman represents had no issue with the principle when it introduced this power or when it was extended in the 2014 Act, so that principle is something on which he and I can agree.

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[Keir Starmer]

I am grateful to the Solicitor General for setting out the provisions of clause 31 in detail. The clause is a wide extension of the powers that I accept already exist in relation to a limited class of individuals and will now cover very many people who are appealing their cases. I urge the Government to consider the impact, particularly on children, of separation in these and similar circumstances.

I have already mentioned the report by the Children’s Commissioner. I appreciate that the context is slightly different in that usually in those cases the spouse is already abroad, but the report gives powerful testimony about the impact on children of being unable to have any meaningful contact with one of their parents for a prolonged period. I do not think that has been assessed and taken into account in the guidance that has just been mentioned, because the timing probably would not have allowed that, but such separation should be considered and taken into account, and there should be a proper impact assessment of the existing remove first, appeal afterwards provisions.

We can dance around article 8, and we can argue as lawyers about whether or not that article has been breached, but among the most powerful points in the Children’s Commissioner’s report of a month ago were the human stories of the impact of suddenly depriving a child of one of their parents for a prolonged period. The report contained stories of children who were highly distressed because their father or mother was no longer available to them for contact for a prolonged period. Some of those families came to the launch and gave their evidence.

Sometimes we need to step out of these Committees and step out of our lawyerly, political selves. I am the father of a four-year-old and a seven-year-old. I heard those families describing what it was like trying to get their children to bed—the crying and distress during month after month of separation. In some cases it may well be that article 8 is breached and in some it may not be, but that is highly distressing for the children, and as a father I found it highly distressing to hear their testimony. I thought about what I would feel if I were separated from my children, whom happily I see nearly every day, for just a week or two. We should not lose sight of the idea of being separated for six months or a year because it does not tick the box of crossing a threshold into article 8, or any other legal provision. This measure will have a profound impact on human lives, and we need to approach this debate with that in mind.

The Solicitor General kindly gave us the statistic of a 42% success rate for appeals, which he puts forward as evidence that there is no obvious detriment in appeal after removal, but let us start by focusing on that figure: 42% of those removed won their appeal. So 42% of the families—if a family is involved—who suffered the human distress that I have described, whether or not there was a breach of the law, succeeded on appeal. That is an alarmingly high success rate in those circumstances.

[The Solicitor General]

The hon. and learned Gentleman is making a proper point about that, but we must be careful not to fall into the trap of assuming that that success rate is always due to failure by the Home Office. It is not. Very often it is due to the applicant’s failure to provide evidence that clearly would have helped in a timely way. It is not fair to keep beating the Home Office over the head for the failures of others.

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[Keir Starmer]

I accept that, and I would accept the wider proposition that some cases will succeed on appeal without that necessarily meaning that the decision can be retaken with the same result, but it is still a high success rate compared with other areas of the law. It may well be that information has not been provided in the way that it should have been; equally, it may be bad decision making by the Home Office. I am trying not to overuse the 42% figure, but it is high.

[Simon Hoare (North Dorset) (Con)]

I have an ongoing case involving constituents of mine in which the quality of their immigration solicitor’s advice was, frankly, shocking. The hon. Member for Rotherham and I have had a conversation outside this place about this case. It amplifies the point made by my hon. and learned Friend the Solicitor General that a lot of legal advisers see this process as a gravy train: if they can provide slightly dodgy advice that does not get the person through the first time, hey presto, here is another piece of advice, another bill and another instruction to act on. Surely to goodness either the Bar Council or the Law Society should provide better and tighter guidance on quality for those people who are often advising under-resourced and vulnerable people.

[Keir Starmer]

I recognise some of what the hon. Gentleman has said. As he indicated, where that is a problem, it is for the professional bodies to regulate better or follow up in individual cases, and nothing that I say should stand in the way of that, but I do not want to step outside the human aspect. Ultimately, in cases where that is an issue, it is the individual who is removed who suffers as a result; if children are involved, it is the children who suffer. If an appeal is successful because bad advice was given months or years earlier and something relevant was not put before the decision maker or court, but it has come to light and been put before an appeal court, the impact on the individual who is not at fault should not be lost.

That is one difficulty with the proposed scheme for removing individuals. However, I recognise some of the picture that the hon. Gentleman has painted, and I agree that where professional follow-up can take place, it should as it would help in such cases. It is, however, also a fact that many appeals take a long time. If decision making were of a higher quality and decisions were quicker, a lot of the concern would evaporate, and we would not be debating the need for deport first, appeal later provisions.

I come to the practicability of appealing from abroad. We are familiar with the notion of a hearing in this jurisdiction. In some ways, a hearing is not dissimilar to the exchanges we have across this Committee Room, where physical human beings make submissions and listen to what is said against those submissions. Here, we have you, Mr Owen; in court, we would have a judge. That judge listens to the exchanges, takes into account the evidence and comes to a decision. Anybody who has ever been in any court of any form will know that many cases are determined through those exchanges, with the decision maker making their mind up as the process unfolds. Attention can be drawn to a particular piece of evidence, a point can be rebutted and additional evidence can swiftly be put before the court or the tribunal, if it is necessary to do so. If a judge has questions, they can be dealt with there and then by the parties.

That is how we have been doing things for 200 years —certainly in the criminal context—and it is a highly effective way of resolving differences between the parties. It is a very different experience if someone is appealing from abroad. In the first place, their submissions will probably be made in electronic or hard, written form way before the hearing. There is no prospect of the sorts of exchanges that get to the truth or resolve the critical issues between the parties. Until recently, it has been possible for some individuals to have representation in the proceedings, notwithstanding the fact that they are abroad. I have a question for the Solicitor General: if the proposed residence test for legal aid comes into force, will that effectively mean that, for this large, extended category of individuals, the prospect of any representation is gone once they are removed, unless they have private money? That is a serious consideration. That proposal would fundamentally change how the scheme operates, when taken with the proposed change before us.

[The Solicitor General]

I can assist the hon. and learned Gentleman there. The position on legal aid is not altered by an individual having to appeal from overseas. Legal aid is not available for article 8 appeals before the tribunal, regardless of whether the appeal is lodged from overseas or within the UK. I hear the point he makes, but the issue he raises is immaterial to the question of legal aid. He also asked about residence, and I will see whether I can get a specific response on that.

[Keir Starmer]

I am grateful. I realise that may not be easy, so if the Solicitor General writes to me or the Committee, I will be grateful. The question was: what impact, if any, will the proposed resident test for legal aid have on those exercising their right to appeal from abroad? I would be happy to receive the answer by way of a letter.

There is, however, a more fundamental point here. There is a very real difference between a hearing at which the individuals are present and able to deliberate and to make submissions in the way I indicated, and one where the individuals are abroad. So my next question is: what practical steps will be taken to ensure that the procedure is as effective as it can be? To break that down: what steps are being taken to ensure that evidence can be made available by way of video, using the technologies available? As I understand it—the Solicitor General will correct me if I am wrong—an individual’s ability to use technical means to appear virtually, as it were, in the courtroom depends on the courtroom being set up to receive such evidence, and not many are. It is for the individual to finance that from wherever they have been removed to and I do not think that the procedural rules for such proceedings have been amended sufficiently to allow that to happen with any great ease or regularity.

Accepting those very real differences between a live appeal and an appeal from abroad, what steps are being taken to ensure the best possible access and ability to participate by those who have been removed? That would include steps to ensure that there is an exchange of submissions, rather than just a set of submissions that are put in in the first place. In other words, how does the appellant abroad deal with the points that the tribunal wants to make as the tribunal begins to make up its mind?

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[The Solicitor General]

The words I used are the words of the Court of Appeal—not as advantageous—but that does not mean prejudicial. The points that the hon. Gentleman raises are a summary of the points raised by the hon. and learned Member for Holborn and St Pancras about the process itself, which I will try to help with in due course, but there is a difference. If the Court had come to the conclusion that there was a clear gap—an injustice gap—for individuals, I am sure the decision of the Court of Appeal would not have supported the submissions made by Lord Keen, the Advocate General.

On the point raised by the hon. Member for South Shields, I will write to her and set out the position in full. The point made by the hon. Member for Paisley and Renfrewshire North about going further and using the statute to exclude children from the scope of the power is, with respect, an unnecessary step to take for the reasons that I hope I have clearly outlined about the necessary protection that children enjoy under section 55 and the guidance. I do not think that going a stage further would serve any particular purpose, however well intentioned.

The hon. and learned Member for Holborn and St Pancras raised important points. I want to try to do justice to them in turn. First, I will deal with the issue he raised about the important report by the Children’s Commissioner. I remind the Committee that the power does not represent a blanket approach. It allows caseworkers to individually consider the impact on individual children—that human element that he prayed in aid so powerfully—and the range of possible effects that a decision to certify might have.

[Keir Starmer]

I wonder whether that is right. As I understand it, decision makers take into account whether there is serious and irreversible harm, not the distress and anxiety that I was talking about. The Children’s Commissioner’s report gives examples of children wetting the bed, being highly distressed for weeks on end, and so on, which may not reach the test of serious and irreversible harm—I do not know. People will argue differently about that, but it is highly distressing, and it is highly distressing to hear about it. Distress will probably be taken into account, but it certainly will not enable the decision makers lawfully to determine against certification.

[The Solicitor General]

I caution the hon. and learned Gentleman against using the term “test” about serious, irreversible harm. We must not forget that the overall test is the article 8 test. We are talking about the guidance. Of course, there will be input from the family, and there might be input from the school and social workers. Those people are best placed to provide evidence about what the impact will be.

It is a reality in our society that many parents and children have to live separately temporarily. Many parents work away—many in this room are in that position—and many are on active service and have to spend long periods of six months or more away from their children. I do not minimise—I really do not, from my own experience—how that affects the family dynamic and the effect that that has on children, but we have to be careful not to single out that category of individuals and say their experiences are sui generis, unique or wholly different from those of other families in those circumstances.

Family separation is sometimes in the best interests of the children. I can think of examples—although not involving examinations, because they take place when children are older—involving children who need a stable term in school, perhaps because they have particular special needs. We should be proud that our country leads the world in special needs provision. I can think of examples involving children who can be supported more effectively in special needs education in the UK. I hope that gives at least some insight into the Government’s thinking on the nuances that will appear in the cases.

The hon. and learned Gentleman made a point about the process itself. He said he is concerned about the fact that the process and procedure of out-of-country appeals are different from that of the hearings that he and I are familiar with. Technology is increasingly used in our courtrooms and, as he knows, the use of virtual technology is often in the best interests of children and vulnerable witnesses, in particular. We are exhorted, and indeed mandated, through statute and practice direction to use such mechanisms increasingly to move away from the effects that what I would call traditional court proceedings can have on individuals. His point is important, but I want to put it in context.

[Keir Starmer]

I do not want to be misunderstood. I championed the use of digital working in our courts. There was a very good pilot in a Birmingham court for criminal cases. However, it took a lot of resource and very good modern technology to make virtual hearings as close as humanly possible to actual hearings. Is the Solicitor General able to say whether steps will be taken for similar arrangements in these cases?

[The Solicitor General]

I am able to give the hon. and learned Gentleman this assurance. If a person appealing from overseas submits that oral evidence is needed, an application can be made to the tribunal for evidence to be given via video link, Skype or telephone. Of course, we have specialist immigration judges who are best placed to make an informed decision about whether the quality of the evidence will be enhanced if it is given in that way. That is similar to the tests that are applied up and down the country every day, increasingly as a matter of course, when it comes to the use of TV links, for example.