My Lords, I wish to speak to Amendments 5, 6 and 7 in my name, and in that of the noble Baroness, Lady Lister. I speak as a member of the Joint Committee on Human Rights. These amendments were recommended in the eighth report of that committee on the legislative scrutiny of this Bill. Following the Government’s response to the committee, it produced a further legislative scrutiny report and again recommended these amendments.
The intention in Clause 1 is very simple: to simplify processes for removing people who are in the United Kingdom unlawfully and provide for removal of members of the person’s family, which provides a new Section 10 to the Immigration and Asylum Act 1999. The question of which member of an individual’s family can be removed following the removal or planned removal of an individual is to be decided in accordance with a number of policies. For example, a family member who has been a victim of domestic violence in accordance with the definition in the Immigration Rules will not be removed. Similarly, a member who is no longer in a family relationship will not be removed. There will undoubtedly be debate in your Lordships’ House about who can and cannot be removed under these provisions. Of course, the Government have stated that removals will be in accordance with existing immigration law and our international obligations.
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New subsection (6) provides the Secretary of State with the power to make regulations about who is a family member and the period within which such a family member may be removed. New subsection (6)(c) provides that regulations may be made about,
“whether a family member to be removed is to be given notice and, if so … the effect that being given notice has on the person’s leave, and … how notice is to be served”.
The Government have stated that family members will always be notified if they are facing removal. In those circumstances, it is legitimate to ask why the Bill contains a provision enabling the Secretary of State to make regulations about whether notice should be given to such a person. As drafted, this clause indicates that regulations could provide for circumstances in which notice would not be given. Going by the Government’s response, that is not what they intend to do.
Amendments 5, 6 and 7 would remove the uncertainty about whether a person is to be given notice; they would provide that where a family member is to be removed, he or she is to be entitled to notice, and that regulations may then provide for the effect of being given notice and how notice is to be given. It is very simple: this would reflect the Government’s stated intention. It is profoundly important that people who are already in a state of some uncertainty are not left in unnecessary further uncertainty.
I will now refer to the report of the Delegated Powers and Regulatory Reform Committee, to which the noble Baroness, Lady Hamwee, referred. I am a member of that committee. In its 22nd report, the
committee referred to the delegation of the power to make regulations about when a person is considered to be a member of a family. That power is delegated under new subsection (6) to the Secretary of State. The committee’s report notes that the Government “have helpfully produced” the draft regulations to which the noble Baroness, Lady Hamwee, referred, and that they contain a definition of family members for the purpose of Section 10 of the Immigration and Asylum Act. It is the view of the committee that is “inappropriate” to delegate the power to define a family member in these circumstances. No case has been made to exclude from the Bill this very important provision. I therefore ask your Lordships to consider very seriously the report by the DPRRC and to contemplate why such a fundamental and basic provision does not appear in the Bill.
Finally, Amendment 8, in the names of the noble Baroness, Lady Smith, and the noble Lord, Lord Rosser, gives effect to the recommendation of the Delegated Powers and Regulatory Reform Committee that the broad powers contained in new Section 10(6) be subject to the affirmative procedure because the powers delegated are not merely in relation to procedural powers, when a negative procedure is appropriate, but are capable of very wide application. I support this amendment, which retains the necessary powers for your Lordships’ House.