Immigration Bill

Lord Brown of Eaton-under-Heywood Excerpts

Wednesday 5th March 2014 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I have the misfortune to oppose these amendments and to take a different view, therefore, from that already indicated by earlier speakers. I welcome the general thrust of Clause 14.

It is hardly surprising that the Government are intent on clarifying as plainly as possible in primary legislation their policy with regard to Article 8 and the interests that Article 8 furthers. Initially they sought to do this by way of changes to the Immigration Rules back in June 2012 but the courts then said, correctly, in the judgment of the Upper Tribunal in a case called Izuazu:

“Only the Parliamentary process for primary legislation permits a clause by clause discussion of the measures, with opportunity for amendments and revision”.

A little later the judgment quoted from a recognised work on constitutional and administrative law, as follows:

“An Act of Parliament has legal force which the courts are not willing to ascribe to other instruments which for one reason or another fall short of that pre-eminent status”.

It is not that the rules are vulnerable to legal challenge. As the noble Lord, Lord Pannick, rightly said, in a recent case the Master of the Rolls made it plain that the rules, for what they are worth, are perfectly lawful. But it is in these circumstances that the Government—to my mind, unsurprisingly—have chosen to translate their policy into primary legislation. Indeed, the Minister made this plain in his response to an earlier group of amendments.

In the past, courts have rather too often tended to thwart the attempts of the Government to control immigration and deport foreign criminals on the basis of Article 8 interests. On occasion, they have carried the reach of this article beyond even the lengths to which the Strasbourg court itself has gone, and that court is no mean exponent of the art of dynamic and creative interpretation of the convention. Indeed, I said as much in a dissenting judgment I gave in 2011 in the Supreme Court in a case called Aguilar Quila. In that case, in reliance on Article 8, my colleagues struck down as not proportionate to Article 8 interests an immigration rule designed to combat the evil of forced marriages. I concluded there that:

“Article 8 is a difficult provision which has already led to some highly contentious, not to say debateable, decisions. Upon that I am sure we would all agree. In a sensitive context such as that of forced marriages it would seem to me not merely impermissible but positively unwise for the courts yet again to frustrate government policy except in the clearest of cases”.

I do not say that the deportation even of foreign criminals is as sensitive a matter as preventing forced marriage but, undoubtedly, it is one that gives rise to wide public concern.

I am strongly in favour of the United Kingdom remaining fully committed to the European Convention on Human Rights—and the Human Rights Act, which gives effect to it domestically. However, I can think of nothing more calculated to induce government to conclude that the nation’s better interests may in fact be served by abandoning our convention commitments than the continual frustration of government policy by an overenthusiastic interpretation and application of the convention, not least Article 8.

The amendments proposed here, particularly those of my noble and learned friend Lord Hope, for whom I have the utmost respect, and my noble friend Lord Pannick, eliminate from the face of the provision the relevance of foreign prospective deportees, and criminals in particular, having been here unlawfully or with only a precarious immigration status when their private lives or relationships were established. The Joint Committee’s recent report very helpfully looked afresh at this provision. Even it did not suggest that these were irrelevant considerations. On the contrary, the particular amendments that the committee proposed at paragraph 111—not, if I may say so, that anybody has yet explicitly adopted them—recognise and acknowledge the relevance of these sorts of consideration. Logically it would follow in the specified circumstances when someone is here unlawfully or under a precarious immigration status that the court would give less weight to whatever private life and relationship interests they have managed to build up. Why therefore not say so? That is precisely what Clause 14 now does. I do not see any distinction—certainly no critical one—between giving interests built up “little weight” and giving them less weight.

Judges will continue to honour their oaths to decide cases independently and objectively. Their entitlement to do so is by no means removed by this clause. In so far as in any particular case the judge considers that absolute Article 8 obligations require that there be no removal of the person concerned, there is nothing in this legislation to drive a contrary decision. Judges can give effect—indeed are duty bound to do so—to that conclusion as to the requirements of Article 8. However, government are entitled—it is what they are doing here in primary legislation as plainly as may be—to set out what their policy is and what they regard as the critical considerations in play in these cases. In short, I see much to be said in favour of this clause and nothing substantial to be said against it.

A final word just on children: clearly the best interests of all children, not just qualifying children, remain a primary consideration in all cases. Qualifying children are a particular concept introduced in respect of the removal of foreign criminals. Surely it is not difficult to see why their situation is singled out for particular special treatment. I am agnostic and neutral on whether that consideration should be spelt out not only under Section 55 of the 2009 Act giving effect to the interests of all children under our international convention obligations but also in this particular provision. It may not be thought necessary but if it is, so be it. However, I support the clause as a whole.

[Baroness Smith of Basildon]

My Lords, as a non-lawyer, I always take some comfort when the lawyers disagree on an issue. I have already stated our position on Article 8. We consider it right for Parliament to set out how the qualified rights of Article 8—the right to private and family life—should be balanced. However, as I think I indicated previously, we share those concerns that some decisions have been taken where we would ask whether the qualifications to Article 8 had also been appropriately considered when assessing the right to private and family life. I would disagree with the noble Lord, Lord Pannick, on that point.

However, I share his anxieties about some of the rhetoric around this debate. I recall the Home Secretary telling the Conservative Party conference that one individual had had his leave to remain granted on the basis of his private life and his family relationship with his cat. That proved to be absolute nonsense and unfair. There is a duty on all of us when discussing this issue to be measured and fair and to ensure that our facts are correct on all occasions.

I would like to probe a couple of areas with the noble and learned Lord. This may be the first debate on this where equal numbers of lawyers and non-lawyers have taken part. The noble Lord, Lord Pannick, and my noble friend Lady Lister made points about the language of the clause. The Government raised the issue of the interpretation of the legislation. However, I do not know whether any other legislation uses the term or gives advice that “little weight” should be given. If there are problems about “little weight” in terms of definition, will there be any clarification from the Government around interpretation for those taking these decisions? We are introducing a concept that could create the same problems around interpretation. It is appropriate that Parliament should state for the benefit of judges how we expect the interpretation to take place if the language is not familiar to them. That appears to be a problem in such cases at present.