My Lords, Amendments 17, 18 and 19 are in my name and that of my noble and learned friend Lord Hope of Craighead. I thank the noble Lord, Lord Taylor, the noble Earl, Lord Attlee, the Immigration Minister, Mr James Brokenshire, and members of the Bill team for the helpful—to me, at least—meeting that we had last week.
Your Lordships had a wide-ranging debate on Clause 18 in Committee. These amendments have a narrow focus. Amendments 17 and 18 address the parts of Clause 18 that tell courts and tribunals to give little weight to private life in defined circumstances—for example, where a relationship with a British citizen was established in this country at a time when the claimant was here unlawfully. Amendment 19 addresses the provision that says that the public interest requires deportation in defined circumstances.
These amendments would modify the absolute nature of the relevant parts of Clause 18. My understanding from the debates that we had in Committee is that there is no dispute from the Government about two propositions; I would welcome assurances on this. The first proposition, which I understand to be uncontroversial, is that there may be compassionate cases—it may be unusual, but there may be cases—where, on the particular facts, Article 8 requires more than little weight to be given to the relevant factors; or where Article 8 requires no deportation despite the terms of new Section 117C. Such cases may be unusual or out of the ordinary, but they are at least conceivable.
The second proposition, which I understand to be uncontroversial—again, I would welcome assurance on that—is that the Government, I think, accept that if the court or the tribunal concludes that Article 8 requires more than little weight to be attached to the factors in a particular unusual case, or Article 8 requires no deportation, the domestic court or tribunal must apply Article 8. That clause is not intended in any way to amend the obligations of the courts or the tribunal under the Human Rights Act. My understanding—I urge the Minister to correct me if I am wrong—is that Clause 18 is not intended in any way to override the
principle stated by Lord Bingham of Cornhill for the Appellate Committee in 2008 in the case of EB (Kosovo) at paragraph 12, that,
“the appellate immigration authority must make its own judgment and that judgment will be strongly influenced by the particular facts and circumstances of the particular case … there is in general no alternative to making a careful and informed evaluation of the facts of the particular case. The search for a hard-edged or bright-line rule to be applied to the generality of cases is incompatible with the difficult evaluative exercise which article 8 requires”.
These amendments seek to ensure that there is consistency between the wording of Clause 18 and the obligations of courts and tribunals. The helpful letter dated 28 March from the noble Lord, Lord Taylor, pointed out, accurately, that it is far from unique for legislation to identify matters for courts to take into account, and the noble Lord gave a number of examples. However, in each of those examples Parliament told courts and tribunals to have regard to particular principles or factors. In none of those examples did Parliament tell courts and tribunals what conclusion to reach. My concern remains the absence of any recognition in the clause as drafted that they may be cases where the Government’s preferred result is not consistent with Article 8. My concern is the suggestion in the legislation that the court or tribunal should arrive at a particular result even though the Government, as I understand it, recognise that the court or tribunal will be required to enforce Article 8.
A long time ago, AP Herbert wrote the very entertaining Misleading Cases. My concern is that Clause 18 is misleading legislation, and we ought to do something about it. I beg to move.