My Lords, I thank the noble Lord, Lord Pannick, for moving the amendment, which has given us an opportunity to air a number of
important points, and I thank all noble Lords who took part in the debate. I do not intend to repeat what I said in my introductory remarks when we discussed the first group of amendments to Clause 14. However, in responding to noble Lords, I may have to repeat one or two of the points that I made.
I emphasise a point made by the noble and learned Lord, Lord Brown of Eaton-under-Heywood. We have sought to put this into statute. The Government have come to Parliament to get Parliament to indicate clearly in primary legislation what it considers to be the matters in the public interest, given that Article 8 is not an absolute right under the European Convention of Human Rights but, rather, a qualified one. It is part of our debates that we should not only respond to invitations from the judiciary, but debate what that public interest should be. That is indeed what we are doing in debating these matters.
I turn first to Amendments 38, 38A, 38B, 39 and 39A. The noble Lord, Lord Pannick, the noble and learned Lord, Lord Hope of Craighead, and the noble Lord, Lord Hylton, propose to remove the provision in Clause 14 that “little weight” in terms of the public interest should be given to family life with a partner, or to private life, which was formed when the person was in the UK unlawfully or to private life formed with precarious immigration status. The amendment of the noble Baroness, Lady Lister of Burtersett, would remove the statement of weight attached to the public interest in circumstances where private or family life was established with unlawful status, or private life was established with precarious status. The noble Lord, Lord Pannick, and the noble Baroness, Lady Smith, raised the issue of the wording of “little weight” and asked where that came from. The Human Rights Act requires courts to take into account Strasbourg judgments, but the requirement is not to follow them. However, the clause indicates that, in relation to precarious immigration status, we expect the court to follow the Strasbourg case law.
I digress for a moment, because the noble Lord, Lord Pannick, also said that precarious immigration status was not defined. As I understand it, Strasbourg case law makes it clear that it covers those temporarily in the country. It is a term that has to be interpreted by the courts, but that is the case whether or not the provision is in the Bill, as it is the correct legal test in determining what weight to give to Article 8 rights. “Precarious” is difficult to define in a Bill, as there are many different types of immigration status. If one takes the case, for example, of Rodrigues da Silva and Hoogkamer v the Netherlands, the European Court of Human Rights found:
“Another important consideration will also be whether family life was created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the host State would from the outset be precarious. The Court has previously held that where this is the case it is likely only to be in the most exceptional circumstances that the removal of the non-national family member will constitute a violation of Article 8”.
It was to capture that jurisprudence of the European Court of Human Rights, which the Government believe is a proper determination of such a situation, that that
has been carried through into the provision in the Bill: that the courts, in taking into account Strasbourg judgments, would give little weight in those circumstances.
The clause reflects that those who enter the UK for a temporary purpose, such as work or study, can have no automatic expectation of being allowed to settle here. Any private life that they develop must be seen in the context of the expectation of their returning to their country of origin. Those who form private or family life while in the UK unlawfully can have even less expectation of being allowed to stay here.
It is important that the immigration system rewards those who obey the rules and provides a clear disincentive to those who do not. These provisions make clear what we believe to be the public interest in that respect. As I said, they reflect the case law of the European Court of Human Rights in Strasbourg, which has consistently placed little weight on private or family life formed during a time when a person’s immigration status is precarious.
More generally, the Strasbourg court has made clear that the European Convention on Human Rights does not guarantee families a right to reside in a particular country and has consistently recognised that the Executive enjoy a significant margin of appreciation in determining how most appropriately to control immigration. Clause 14 is framed within the margin of appreciation afforded to states in this respect.
It is right that Parliament should make clear its view that little weight in terms of the public interest should be given to family life with a partner, or to private life which was formed when the person was in the UK unlawfully or to private life formed with precarious immigration status. We do not believe that that encroaches on the proper judicial function. It will remain a matter for the court to decide whether the weight to be accorded to the public interest as set out by Parliament in Clause 14 outweighs the individual’s right to respect for private and family life, and therefore whether the decision is proportionate in Article 8 terms.
The noble Lord, Lord Pannick, referred to the fact that my noble friend Lord Taylor of Holbeach had signed the Section 19A certificate in regard to the European Convention on Human Rights and asked whether we believe that it is consistent with it. The answer is: yes, we do believe that it is consistent. I understand that that was not challenged by the Joint Committee on Human Rights. I acknowledge that certain important points were raised, but I do not understand the Joint Committee on Human Rights to have challenged that.
In Amendments 41 and 44, the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Hope of Craighead, propose to remove most of the provisions setting out specific public interest statements to which the courts would be required to have regard when assessing an Article 8 appeal against deportation from a foreign criminal. The public interest statements in question set out when, in the case of a foreign criminal sentenced to less than four years’ imprisonment, the public interest will be outweighed by an individual’s private life in the UK, or by their family life with a qualifying child, or by their family life with a qualifying partner. The public interest statements also reflect a
higher threshold for those sentenced to imprisonment of four years or more, which we believe reflects the very strong public interest in deportation, given the seriousness of these types of crimes. Only where there are very compelling circumstances will the public interest be outweighed by Article 8 rights in such a case.
The effect of Amendments 41 and 44 would be to leave just two statements of what is in the public interest when assessing whether it is proportionate to deport a foreign criminal: first, that the deportation of foreign criminals is in the public interest; and secondly, that the more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal. Much of the detail in the clause appears in the Immigration Rules, which Parliament considered in 2012. The two statements that would be left if Amendments 41 and 44 found favour with the Committee would not alone achieve the overall aim of Clause 14, which is to ensure that Parliament’s view of the weight to be attached to the public interest in deportation is taken properly into account by the courts when considering cases engaging Article 8, thereby achieving greater fairness and consistency in appeal outcomes.
Of course, as was acknowledged by the noble and learned Lord, Lord Brown, every appeal must be assessed on its individual facts and, where there is a right of appeal, the courts must ultimately decide what is proportionate in Article 8 terms. Clause 14 does not seek to change that proper judicial function; rather, the amendments would remove much of the framework which Clause 14 provides for weighing the public interest in the deportation of foreign criminals as part of that proportionality assessment.
We believe that the benefits of a framework set out by Parliament in primary legislation are clear. It is right that Parliament’s view of the public interest should be given proper weight in immigration and deportation decisions engaging Article 8. Such a framework will also bring greater efficiency, consistency, fairness and transparency of decision-making.
Parliament has not previously provided a full and clear statement in legislation on where the public interest lies in considering family and private life claims. As I said before, the 2007 Act requires the Secretary of State to make a deportation order against a foreign criminal sentenced to at least 12 months’ imprisonment, unless one of the several specified exceptions applies, including where deportation would breach the criminal’s human rights. Although an indication of the public interest, it is a limited view, and does not assist the courts in determining how to balance an individual’s right to family and private life against that public interest.
Inevitably, therefore, the courts have had to reach their own view on public policy imperatives. In other words, it has been left to the court in an individual case to determine how best to balance relevant factors, based on the decision-maker’s individual perception of public policy considerations. I am sure we all agree that it is right and proper for the Government to make decisions about public policy, subject to the views of Parliament, and ensure that the public interest is given proper weight.
The statements of public interest contained in Clause 14 reflect the basis of the new Immigration Rules which was approved in October 2013 by the Court of Appeal in MF (Nigeria), as the noble Lord, Lord Pannick, said. The court found that the new deportation rules provide a “complete code” for dealing with Article 8 claims and that where specific family and private life exceptions to deportation were not met,
“it is necessary to consider whether there are circumstances which are sufficiently compelling … to outweigh the public interest in deportation”.
The noble Lord asked why we were doing this, given the decision of the Court of Appeal in MF (Nigeria). Looking at the chronology, I suspect we would find that the Bill was introduced into the other place almost within days of that decision being handed down. I can assure the noble Lord that legislation is not produced within days and is some time in the gestation. We thought it important, given that the Upper Tribunal has said in the case of Izuazu—I am sure that the noble and learned Lord, Lord Brown, would pronounce that name better—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 on the Upper Tribunal and will be followed by it”.
By putting statements into primary legislation, Parliament will have made clear its view on where the public interest lies and we expect the courts to have proper regard to that.
I also make the point in passing that the inner house of the Court of Session is on an appellate par with the Court of Appeal and that, as I cited earlier, the noble and learned Lord, Lord Mackay of Drumadoon, observed on the case that I referred to that these rules did not have the force of statute. It is important to observe that in that case, the inner house’s extra division actually upheld the position of the Secretary of State for the Home Department, so it is not as if we were crying foul or anything like that. It is also the case that MF (Nigeria) concerns deportation cases whereas Clause 14 concerns public interest considerations more generally. It will also enable the court to consider the public interest in family cases and private life cases that do not necessarily involve foreign criminals.
Unlike the Immigration Rules, Clause 14 does not contain requirements to be met but factors to be considered, in the form of public interest statements, to which the courts will be required to have regard. This recognises that there must continue to be an assessment of the individual facts of each case and that the decision on proportionality under Article 8 continues to lie, ultimately, with the court. The statements, however, ensure that Parliament has decided what the public interest requires and not the courts. In formulating the public interest statement that a foreign criminal sentenced to a period of imprisonment of at least four years must be deported unless there are very compelling circumstances, the Government took account of Parliament’s approach in approving the Legal Aid, Sentencing and Punishment of Offenders Act 2012. This Act amended the Rehabilitation of Offenders
Act 1974 to reflect that a sentence of imprisonment for a term exceeding four years will never be rehabilitated or “spent”.
Parliament therefore appears, in recent legislation, to have endorsed the position that a term exceeding four years’ imprisonment represents a very serious level of offending indeed. The Government consider that a custodial sentence of at least four years is one which means that it will almost always be proportionate to outweigh any family or private life considerations and, as such, would require compelling circumstances to lead to an outcome other than deportation. This is the approach we adopted for deportation cases in the new Immigration Rules, using the term “exceptional circumstances”. We are trying to bring greater clarity to decision-making, not return to the difficulty which the courts have already experienced in assessing complicated individual circumstances against case law in the absence of a clear statement from Parliament of what the public interest requires. To remove the exceptions to deportation from Clause 14, as proposed, would be to remove Parliament’s clear statement of its view of the weight that should be attached to the public interest in deportation, thereby undermining the purpose of that provision.
Finally, I turn to Amendment 46, tabled by the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Hope, which is contingent on Amendments 41 and 44. This would delete the provision explaining how to interpret references to a person who has been sentenced to a period of imprisonment of a certain length of time. As the House will appreciate, a definition of “a period of imprisonment” is required to ensure that there is no confusion in the application of Clause 14. Section 38 of the UK Borders Act 2007 sets out what constitutes,
“a period of imprisonment of at least 12 months”,
for the purposes of that Act. The interpretation for Clause 14 has been drawn from that and is necessary for the avoidance of doubt and to ensure consistency, both across primary legislation and in the application of the new provisions. In the light of these explanations I encourage the noble Lord, Lord Pannick, to withdraw his amendment.
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