My Lords, Amendments 38, 41, 44 and 46 are in my name and that of the noble and learned Lord, Lord Hope of Craighead, who regrets that he is unable to be in his place this evening.
The Minister mentioned some of the history behind Clause 14 in his general comments in response to Amendment 33. This is not a criticism, but he omitted to refer to the fact that this subject has concerned the Home Secretary for some time; at least since her speech in autumn 2011 at the Conservative Party conference, when she referred to a Bolivian man who she alleged had avoided deportation because of his relationship with his cat. The Home Secretary returned to the subject in February 2012 in an article she wrote for the Mail on Sunday under the provocative headline, “It’s MY job to deport foreigners who commit serious crime —and I’ll fight any judge who stands in the way”.
The contents of this article were as combative as the headline. According to the Home Secretary, some judges did not understand Article 8 of the European convention on the right to private life, in particular in relation to deportation. They were ignoring the Immigration Rules and subverting our democracy. This is not ancient history because at the Second Reading of this Bill in the other place on 22 October 2013, the Home Secretary stated that these remained the concerns which formed the basis for Clause 14 of the Bill. She complained that,
“some judges have still chosen to ignore the will of Parliament and go on putting the law on the side of foreign criminals instead of the public.—[Official Report, Commons, 22/10/14; col. 162.]
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The first problem I have with Clause 14, and which motivated these amendments, is whether there really is a mischief that needs to be addressed. Can the Minister tell the Committee who are these rogue judges and how often tribunals and courts have, in the view of the Government, misapplied Article 8? Can he say how many cases that troubled the Home Secretary she brought to the Court of Appeal, and with what result? I ask these questions because similar ones were put by the noble Lord, Lord Rosser, in winding up for the Opposition in the Second Reading debate in this House on 10 February, at col. 520. They are, I respectfully suggest, important questions for the noble and learned Lord to answer, because a very serious allegation has been made against the judiciary. I do not speak for the judiciary, but I simply cannot understand the factual premise for Clause 14—and nor, if I may say so, can anyone else practising in this field to whom I have spoken.
The Minister said, again in debate on Amendment 33, that the Immigration Rules might be the subject of legal challenge because they are not in primary legislation and therefore that it is desirable to legislate. He also suggested that the noble and learned Lord, Lord Mackay of Drumadoon, by reason of his judicial observations, may be responsible for Clause 14. The history, as I have sought to point out, suggests otherwise, but in any event, as the Minister will know, the matter has now been addressed by the judgment of the Master of the Rolls, Lord Dyson, for the Court of Appeal in the case of MF (Nigeria) v the Secretary of State, decided on 8 October 2013 and reported in 2014 on page 544 of volume 1 of the Weekly Law Reports.
In that judgment the Master of the Rolls, speaking for the Court of Appeal, upheld the validity of the new Immigration Rules. His Lordship decided at
paragraphs 42 to 44, accepting the submissions made on behalf of the Home Secretary, that the Immigration Rules are valid. They require tribunals to apply a proportionality test which recognises that something very compelling will be required to outweigh the public interest in the removal of someone liable to deportation. Can the Minister explain to the Committee what it is that the Secretary of State is now objecting to in any of this, and why we need Clause 14 in the light of the Court of Appeal judgment?
I have a second concern about Clause 14 which again informs these amendments. New Section 117B(4) and (5) do not merely set out the Government’s view of what factors should be taken into account in a deportation case, as the noble and learned Lord suggested in his comments on Amendment 33. New Section 117B(4) and (5) tell judges to give “little weight” to,
“(a) a private life, or
(b) a relationship formed with a qualifying partner,
that is established by a person when the person is in the United Kingdom unlawfully”,
or,
“when the person’s immigration status is precarious”—
whatever that means, because the term is not defined and will give lawyers many hours of gainful employment. The objection to new Section 117B(4) and (5) is that they will tell the judiciary how much weight to give to relevant factors. The problem with this, as the noble and learned Lord will understand, is that how much weight should be given to such factors will inevitably depend upon the facts of a particular case.
The Joint Committee on Human Rights said in its eighth report of this Session at, paragraph 60, that it was “uneasy” about this provision. The Joint Committee described it as,
“a significant legislative trespass into the judicial function”,
which appears to be “unprecedented”. I would have no difficulty with Parliament identifying public interest considerations for the courts and tribunals to take into account. No one could object to that. Parliament can perfectly properly specify factors such as those listed in new Section 117B(4) and (5), although of course judges already take them into account. The objection is that the proposed new section purports to tell judges what weight to give those factors in particular cases. That is a matter for the judge or the tribunal in the circumstances of the individual case.
I would also welcome information from the Minister on how new Section 117B(4) and (5) are to be applied in the event that the tribunal thinks that Article 8 and the proportionality test require that such factors be given more than a “little weight”. The Immigration Rules expressly state that decision-makers must act in accordance with the Human Rights Act 1998. The Court of Appeal judgment in MF (Nigeria) records that the Home Secretary accepted that the Immigration Rules were not intended to suggest the contrary. The noble Lord, Lord Taylor of Holbeach, who I am pleased to see in his place, has made a statement under Section 19 of the Human Rights Act on the front page of the printed version of the Bill that its provisions are compatible with convention rights. Can I therefore ask the noble and learned Lord to confirm that if in a particular case a judge or tribunal concludes that
Article 8 requires more than little weight to be given to such factors, nothing in Clause 14 will require the judge or tribunal to decide to the contrary?
I should finally mention new Section 117C which purports to set out the criteria to be applied in deportation cases where the individual has been sentenced to a period of imprisonment. Again, I am concerned that these criteria are far too prescriptive and will reduce proper judicial discretion. For example, new Section 117C(4)(b) requires an applicant to show that he or she,
“is socially and culturally integrated in the United Kingdom”.
Can the Minister assist the Committee on what this concept means? Does the Muslim man living in Birmingham whose social and cultural life is in the Muslim community, and does the Jewish woman living in Hendon in the Jewish community, satisfy this criterion? Are they socially and culturally integrated in the United Kingdom? I am very troubled by Clause 14 for all these reasons, and I beg to move.