My Lords, as I think the noble Baroness alluded to when she moved the amendment, in the Public Bill Committee in the other place my honourable friend Mark Harper, who was then the Immigration Minister, indicated that the age of seven had previously been brought in as a concession —known as DP5/96, from which I assume that it was brought in in 1996—against deportation where children had accumulated seven years of continuous residence. It was withdrawn in December 2008 in favour of a case-by-case approach applying Article 8. However, as we made clear in the debate on the rules, that left it to the courts to develop the policy on what Article 8 required and it led to uncertainty and inconsistency. Therefore, the period of seven years had applied before.
I do not disagree that there may be cases that need to be looked at individually but the important point that we are seeking to make here is that it is for Parliament to indicate what it believes the age of a qualifying child should be. We are saying that in our judgment it should be seven, for the reasons I have articulated. I also indicated that ultimately it will be
for the courts to determine the proportionality of a decision. However, passing this primary legislation will give a strong steer and an indication to the courts of what Parliament believes to be in the public interest. That is a judgment that the Government have made. I think I am right in saying that it was in the 2012 rules, which have been considered and which we now invite Parliament to endorse and to put into primary legislation.
The noble Baroness asked whether I could confirm that guidance will be published and how the Section 55 duty will apply in relation to cases considered. I confirm that it is our intention to publish guidance setting out how the best interests of the child will be considered. As I have already said, Section 55 requires the Secretary of State to have regard to the best interests of the child as a primary consideration, and the Bill does not change that.
I will write separately to the noble Baroness, placing a copy in the Library, in response to her query about the response to the asylum report and the consideration of children’s best interests. The Home Office response to the UNHCR report on asylum is still being considered.
Amendment 43 would replace “unduly harsh” with “disproportionate” when considering the effect on the partner or qualifying child of the deportation of a foreign criminal who has not been sentenced to imprisonment of four years or more. However, this would not reflect sufficiently clearly the weight that should be attached to the public interest in the deportation of such a foreign criminal. Nor would it achieve the aim of the legislation, which is to set out clearly how the Secretary of State and the courts should approach the proportionality test, taking account of the public interest as properly determined by government and Parliament.
We believe that the children’s best interests must be a primary consideration. We fully accept that and Clause 14 is carefully designed to reflect that. However, it is simply not the case that a child’s best interests will outweigh every other possible countervailing factor, including illegal immigration and serious criminality. Nor is it the case that the UK is obliged to allow all migrants who are parents to remain in the UK where this is in one child’s best interests, ignoring the interests of other members of the public, including children.
In cases that do not fall within the scope of Clause 14, consideration will still be given to the individual facts of the case having regard to Article 8 and Section 55. Clause 14 does not seek to cover every possible situation in which an Article 8 or Section 55 issue may arise. That would be too complex and unwieldy.
In EA (Nigeria) the court said that, in considering the best interests of a young child, the correct starting point is to assume that it is in the best interests of a child to live with and be brought up by his or her parents unless there are very good reasons why that is not the case. Therefore, where the child is being removed with their parents and as a family to that family’s country of origin, that is not a breach of Article 8 and we believe that it is consistent with the children duty in Section 55.
I hope that the House will agree that technical legal arguments about whether the best interests of a child is “a” or “the” primary consideration, or the order in which various factors must be considered, can be a
distraction. The important point is that we comply with the obligation to treat the best interests of the child as a primary consideration. We believe Clause 14 is entirely consistent with that. The noble Baroness’s amendment has afforded me and other parts of the House the opportunity to make that very clear. However, we believe that the amendments would draw lines in the wrong place. For those reasons, I invite the noble Baroness to withdraw her amendment.
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