My Lords, I thank the noble Baroness, Lady Lister, for introducing this amendment, and thank those who have raised very important points in relation to children and the best interests of the child.
I crave the indulgence of your Lordships’ House to take a few moments, before I reflect on the specific amendments, to set out briefly what was in the Government’s mind in bringing forward this clause, and how we expect it to operate and what it is expected to achieve. I do so to set it in context for this and the next two groups of amendments.
Article 8 of the European Convention on Human Rights provides for the right to respect for private and family life. As the noble Baroness, Lady Smith, said, it is a qualified right. The individual’s right under Article 8(1) can be outweighed by measures necessary for and proportionate to the legitimate aims under Article 8(2), including protecting the public by deporting foreign criminals and safeguarding the United Kingdom’s economic well-being by controlling immigration.
There is a clear public interest in these aims. These are also matters of public policy which we believe is the responsibility of government to determine, subject to the views of Parliament. Clause 14 will make clear what Parliament thinks is in the public interest in terms of controlling immigration and protecting the public where Article 8 is engaged in an immigration case. It is for Parliament to decide what the public interest requires. It is then for the courts to have due regard to that when considering the proportionality of any interference in the exercise of an individual’s right under Article 8. We believe that is the right approach and that is reflected in how Clause 14 has been framed.
The Committee will recall our debates on the new Immigration Rules on family and private life which were implemented on 9 July 2012. The Immigration Rules, laid before Parliament by the Secretary of State under Section 3(2) of the Immigration Act 1971, are a statement of the normal practice to be followed by the Secretary of State’s caseworkers in making immigration decisions under the statutory framework that Parliament has provided. It is in the interests of a clear, consistent and transparent immigration system in which applicants and the public can have confidence that these rules should enable the Secretary of State’s caseworkers to decide individual cases lawfully and in accordance with the Government’s immigration policy. The courts have agreed the importance of having such a set of rules —for example, in the decision of the Judicial Committee of your Lordships’ House in the case of Huang.
The key test that both the Secretary of State and the courts apply in assessing the Article 8 compatibility of a decision is whether it is proportionate. However, in immigration decisions engaging Article 8, the courts,
prior to the July 2012 rule changes, were unable to give proper weight to the Government’s and Parliament’s view of the public interest because the Immigration Rules did not adequately reflect Parliament’s view on how the balance should be struck between the individual right to respect for private and family life and the need for effective immigration control to protect the public and the economic well-being of the United Kingdom.
I shall provide a bit of history. When the Human Rights Act 1998 was commenced in 2000, the rules were amended to require all Home Office staff to carry out their duties in compliance with its provisions, but there was no substantive change to the family or private life part of the rules to reflect how individual rights and the public interest should be balanced. There was no attempt thereafter to align the rules with developments in case law, such as the decisions of the Judicial Committee of your Lordships’ House in the cases of EB (Kosovo) and Chikwamba. Instead, previous Secretaries of State asserted that if a court thought that the rules produced disproportionate results in a particular case, the court should itself decide the proportionate outcome on the facts before it. This approach meant that the courts could not give due weight to the Government’s and Parliament’s view of the public interest under Article 8, as the courts did not know what that view was. It also did not properly reflect the responsibility of the Government and Parliament for determining the public policy framework under which immigration decisions should be taken. Indeed, as I have already said, it left the courts to develop public policy themselves through case law on issues such as the appropriate level of maintenance for family migrants. We do not believe that that was conducive to clear, consistent and transparent decision-making by the Secretary of State’s caseworkers.
It was against that background that on 9 July 2012 the Government implemented major reforms of the Immigration Rules relating to private and family life. The new rules filled the public policy vacuum that had been inherited by setting out the position of the Government on proportionality under Article 8, in the light of existing case law and of evidence such as the report of the independent Migration Advisory Committee on the appropriate level of the minimum income threshold for sponsoring family migrants. The new rules were debated and approved by the House of Commons on 19 June 2012 and were debated by this House on 23 October 2012, following which the noble Baroness, Lady Smith of Basildon, withdrew her Motion of Regret. The new rules set out how the balance should be struck in Article 8 cases between an individual’s rights and the public interest. They provide clear instructions for the Secretary of State’s caseworkers on the approach they must normally take, and they therefore provide the basis for a clear, consistent and transparent decision-making process. The new rules also form the basis for the assessment by the courts of the proportionality under Article 8 of immigration decisions. The Court of Appeal has endorsed the lawfulness of such an approach in the case of MF (Nigeria).
The courts have a clear and proper constitutional role in reviewing the proportionality of measures passed by Parliament and of the executive decisions made
under them, and must ultimately decide on what is a proportionate interference under Article 8. I should stress that Clause 14 does not seek to change this proper judicial function. However, it is right that the Secretary of State should expect the courts to give proper weight to the view endorsed by Parliament on how, broadly, public policy considerations are to be weighed against individual family and private life rights when assessing Article 8 in any individual case. The courts themselves have underlined the importance of the view of Parliament on such matters and have confirmed that they will defer to that view where it is known.
However, some judges have since given only limited deference to the new rules, and say that they represent only a weak form of parliamentary scrutiny. The Upper Tribunal has said that,
“Whilst it is open to Parliament to change the law by primary legislation unless and until it does so these”—
previous—
“decisions are binding ... and will be followed”.
I hope that I will not embarrass the noble and learned Lord, Lord Mackay of Drumadoon, by quoting him. He said in the case of MS v the Home Secretary in the Extra Division of the Inner House last year:
“The rules are not a statute but merely a statement by the executive of how it intends to exercise powers conferred by statute. Consequently the application of the rules in individual cases is potentially subject to judicial review. Nevertheless, the new rules have been debated in Parliament, which confers a certain degree of democratic approval. Moreover, they are instructions put forward by the minister in a democratically elected government who is charged by statute with the administration of the immigration system. To that extent, too, the rules can be said to result from democratic processes. These are factors which must be given some weight when a court considers the application of the rules, although they cannot be conclusive because the rules do not have the force of statute”.
By bringing forward Clause 14 we seek to invite Parliament to give the status of statute to the rules, which are set out substantially in the same terms as the Immigration Rules that your Lordships’ House debated in October 2012.
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The courts have asked for the clearest possible indication, through primary legislation, of Parliament’s view of what the public interest requires. This clause is our response to that invitation. It assists the courts by setting out plainly the weight they should attach to the countervailing public interest in considering Article 8 in an immigration case. Clause 14 introduces a new Part 5A to the Nationality, Immigration and Asylum Act 2002, containing four new sections which require a court or tribunal when determining whether Article 8 is breached in an immigration case to have regard in particular to certain considerations when considering the public interest under Article 8(2). The clause sets out what the public interest requires in immigration cases where there is a qualifying partner or child, and makes additional provision for cases involving a foreign criminal.
I stress that Clause 14 does not encroach upon the proper judicial function of considering whether the Executive’s decision is proportionate—that is, whether the public interest outweighs the Article 8 rights of the individual on the facts of the particular case. Clause 14
will put beyond doubt Parliament’s view of the public interest in immigration cases engaging Article 8. It will, as primary legislation, give the strongest possible weight to that view and require the courts to have regard to it. The Upper Tribunal invited Parliament to legislate on these matters and that is what, through this clause, we are doing.
I am grateful to your Lordships for allowing me to set that out because it provides context on these important issues. Concerns have been raised in the amendment moved by the noble Baroness, Lady Lister of Burtersett, and supported by my noble friend Lord Roberts, on the need to safeguard and promote the welfare of children in the United Kingdom. I also recognise and acknowledge the work of the Joint Committee on Human Rights for its consideration of these issues. The noble Baroness, in moving her amendment, and the noble Lord, Lord Pannick, referred to putting such a provision into the Bill.
However, perhaps it is important to state—I shall say it more than once during my remarks—that in immigration the two main legal provisions that govern our obligations towards children are the United Nations Convention on the Rights of the Child and Section 55 of the Borders, Citizenship and Immigration Act 2009, which is usually referred to as the “children duty”.
These provisions, as interpreted in particular by the Supreme Court in ZH (Tanzania), establish the best interests of the child as a primary consideration in considering proportionality under Article 8. The noble Baroness properly and fairly set that out. She did not claim it to be the paramount interest and said that she was not using the matter as a trump card. There is no dispute between us on that. That interpretation means that the Secretary of State must have regard to the best interests of the child as a primary consideration and ask whether any other considerations outweigh it. Clause 14 is compatible with our legal obligations towards children and has been designed to take proper account of children’s best interests. The Government recognise that as an important consideration, and the Bill reflects that. The clause applies when a court or tribunal is considering Article 8 in an immigration case, and sets out what the public interest requires. These are the countervailing factors that must be balanced against the best interests of the child.
New Section 117B relates to non-criminal cases. We have had regard to the children duty under Section 55 of the 2009 Act, and new subsection (6) sets out that the public interest does not require the removal of a person who has a qualifying child where it would not be reasonable to expect that child to leave the United Kingdom. New Section 117C applies additional public interest factors to foreign criminals. Again, we have had regard to the children duty and subsection (5) provides that, where the foreign criminal has been sentenced to less than four years’ imprisonment, the public interest does not require deportation where there is a qualifying child and the effect of the criminal’s deportation on the child would be unduly harsh. The noble Lord, Lord Pannick, asked whether that was in conflict. We do not believe that it is. I obviously respect the noble Lord’s views and will reflect on that, but we do not believe that it is in conflict, given that
ultimately the individual decision on proportionality, taking into account the individual circumstances of a case, will be a matter for the courts.
The test is higher for criminals because of the greater public interest in their deportation. This distinction was accepted by the noble and learned Baroness, Lady Hale, in ZH (Tanzania). Therefore, both the economic interests of the United Kingdom and the prevention of disorder and crime are legitimate factors to weigh in the balance when considering the children duty, while the maintenance of effective immigration control goes to the prevention of disorder or crime as well as safeguarding the economic well-being of the country. However, unsurprisingly, criminality is a weightier factor.
Amendment 33 would require the court to consider, first, the best interests of any child affected by the decision before going on to have regard to other considerations. I am sympathetic to this amendment but I do not believe it is necessary. The Supreme Court found in ZH (Tanzania) that the best interests of children are to be a primary consideration in assessing proportionality under Article 8. It also found that “a primary consideration” is not the same as “the primary consideration”, still less when compared with “the paramount consideration”. The law is clear that the best interests of a child can be outweighed by countervailing factors, including the public interest in controlling immigration and protecting the public.
Case law is also clear that a child’s best interests can be considered in any order in the decision-making process provided that it is considered properly and that sufficient weight is placed on the welfare of the child. The amendment is about process rather than substance and it would, as has already happened, result in technical legal arguments about process rather than substance. We believe that the framing of Clause 14 is fully consistent with the correct legal approach to the children duty. Rather than ignoring or overlooking the best interests of the child, Clause 14 provides very specific protection for a qualifying child, similar to that contained in the July 2012 Immigration Rules, which were debated and endorsed by Parliament.
Amendments 40, 42 and 45 would take out the definition of a qualifying child and bring all children into the scope of Clause 14. However, Clause 14 does not purport to set out how Article 8 will operate in detail in every case. The clause specifically addresses the situation of a “qualifying” child, and it clarifies the public interest where such a child is involved. However—I want to emphasise this as I think I was invited to do so by the noble Baronesses, Lady Lister and Lady Smith, and the noble Lord, Lord Pannick—that does not mean that the rights of other children are ignored. Consistent with Section 55 of the 2009 Act, the Immigration Rules and supporting guidance set out the detail of how the public interest under Article 8 operates in other types of cases. The best interests of a child in the United Kingdom will continue to be a primary consideration in all cases, whether or not the child is a “qualifying” one. I do not think that I can make it any clearer than that for the record.
The Bill defines a “qualifying” child as a child who is a British citizen or has lived in the United Kingdom for a continuous period of at least seven years. I was
asked why the period of seven years is in the definition. Clause 14 provides very specific protection. The provision recognises that the passage of time and the level of ties in the United Kingdom that the child may develop over that time may make it unreasonable to expect the child to leave the United Kingdom. However, in cases where the child has lived here for less than seven years, there is not the same private life justification for allowing them to stay. In EA (Nigeria) in 2001, the court said that in the case of very young children from birth to age four, the child is primarily focused on themselves and their parents or carers. It said that very young children do not typically form any deep or strong friendships outside the family, such as will happen as the child grows up and begins to develop more independence.
We have acknowledged that if a child has reached the age of seven, he or she will have moved beyond simply having his or her needs met by the parents. The child will be part of the education system and may be developing social networks and connections beyond the parents and home. However, a child who has not spent seven years in the United Kingdom either will be relatively young and able to adapt or, if they are older, will be likely to have spent their earlier years in their country of origin or another country. When considering the best interests of the child, the fact of citizenship is important but so is the fact that the child has spent a large part of his or her childhood in the United Kingdom.