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Mrs May: Indeed. My hon. Friend is right about that, and it is a pity that such a point was not debated previously. We are able to put that right today and, as I say, I hope that we will have full support from across the House.

Pete Wishart (Perth and North Perthshire) (SNP): I am looking at a motion that says nothing about Parliament’s view on article 8; all it seems to be is a restatement of the bleeding obvious. We all know that article 8 is a qualified right, so why are we here debating a nothing motion?

Mrs May: I suggest that the hon. Gentleman read right to the end of the motion, as he will then see that we do indeed record that we support the

“right to respect for family…life in Article 8”.

We say that it is “a qualified right” and we agree that

“the conditions for migrants to enter or remain in the UK on the basis of their family or private life should be those contained in the Immigration Rules.”

That is the second crucial part of the motion. Opposition Members are arguing that somehow Parliament should not debate an issue that is of considerable concern to members of the public. The public do not want to see foreign criminals whom they think should be deported, and whom the Government think should be deported, being able to stay in the UK because they are able to claim a right under article 8. Parliament has the opportunity today to set out its view on this clearly.

Several hon. Members rose

Mrs May: I will give way to the former Home Secretary.

Mr Jack Straw (Blackburn) (Lab): May I, in fully endorsing the Home Secretary’s approach and this motion, ask her to comment on the following? The previous Government, including through my right hon. Friend the Member for Kingston upon Hull West and Hessle (Alan Johnson), did make great efforts to get the courts to change their approach, as they did in the Amy Houston appeal—I have details of the grounds of appeal here with me—but it was only when the courts found themselves trapped by their own precedent that this became necessary. I therefore endorse this approach, but it is not for the want of trying an alternative route pursued by the previous Government.

Mrs May: The right hon. Gentleman makes the valid point that this has been an issue for some time. I think it would have been possible for the previous Government to have done what we are doing today and bring a motion before Parliament, but we have done it and we are giving people that opportunity.

Mr William Cash (Stone) (Con) rose

John McDonnell (Hayes and Harlington) (Lab) rose

Mrs May: I shall make a little progress, if I may, because I have taken a number of interventions.

With the changes that I am making, there will generally be no need for a separate assessment of article 8 beyond the requirements set out in the immigration rules. Compliance with the immigration rules will mean

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compliance with article 8, other than in truly exceptional circumstances. So, a foreign criminal who does not meet the criteria set out in the rules will be deported and they will not have a second bite at the cherry via article 8. Similarly, a migrant seeking to come to the UK to join a partner must meet the criteria set out in the rules or a visa will be refused and there will be no separate article 8 claim. The immigration rules will no longer be a mere starting point, with leave granted outside the rules or appeals allowed under article 8 for those who do not meet them. The rules will instead take into account article 8, relevant case law and appropriate evidence and they will be proposed by the Executive and approved by the legislature.

Of course, the courts have a clear constitutional role in reviewing the proportionality of measures passed by Parliament, but now the focus of the courts should be on considering the proportionality of the rules rather than the proportionality of every individual application determined in accordance with the rules. Where the courts consider individual deportation decisions, it should now be with consideration of Parliament’s public policy intent firmly in mind.

Some have suggested that Parliament cannot set out how article 8 should be qualified because we are bound by the European convention on human rights. They evidently do not understand that article 8 is a right that is qualified by the convention itself. Of course, judges will continue to consider each case on its individual merits, but it is the courts themselves that have said that Parliament needs to make its views clear. In a case in 2007, the House of Lords said that a statement from Parliament was needed on where the public interest lies in the operation of article 8 in immigration cases. The Court of Appeal, last year and this year, has indicated that greater weight is to be given to the public interest when that has been endorsed by Parliament. Today’s motion provides the courts with the statement and the endorsement from Parliament that they have said is needed. The courts should then give that statement from the elected legislature the weight that it deserves.

John McDonnell: Will the right hon. Lady clarify whether we are legislating today? Are we passing into law the rules that she published less than a week ago?

Mrs May: The motion recognises the qualification of article 8 and invites the House to agree that it is set out in the immigration rules. The immigration rules themselves have been laid before Parliament—[Interruption.] I am very happy to read the motion again. It states that the House

“agrees that the conditions for migrants to enter or remain in the UK on the basis of their family or private life should be those contained in the Immigration Rules.”

Mr Cash: I am much encouraged by the line the Home Secretary is taking on all this. Over and over again, as she knows, I have raised the question of the interpretation by the courts of matters relating not only to the European convention but to European Union law. Is she taking the opportunity, by one means or another, to have discussions with those in the superior hierarchy of the judiciary? To bolster the assumptions that lie behind what she is saying in defence of the

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sovereignty of this Parliament, does she want to put the words “notwithstanding the Human Rights Act 1998” in front of the legislation so that the courts are under no misapprehension about what they are to do?

Mrs May: I think my answer to my hon. Friend will be shorter than his question. The motion makes it absolutely clear what we are asking people to do today and I am certain that the judiciary will take into account the view of Parliament. Indeed, as I have said, members of the judiciary have suggested that it would be helpful to have the view of Parliament.

Since the Human Rights Act was implemented in 2000, it has become clear that the existing immigration rules do not properly set out how article 8 should be qualified in real cases. As a result, foreign criminals and those who failed to meet the requirements of the immigration rules and who should not be allowed to come to or stay in the UK have increasingly been able to challenge their decisions in the courts on the grounds of a breach of article 8. So, for those who do not meet the requirements of the rules, grants of discretionary leave outside the rules on article 8 grounds have risen steadily to the point that in 2010 the UK Border Agency granted discretionary leave on the basis of article 8 in around 9,500 immigration cases. That means that in 9,500 cases, applicants could not meet the requirements of the immigration rules but were allowed to stay in the UK none the less. In addition, reflecting established policy on dealing with such cases, they were automatically granted full and immediate access to the benefits system. Perversely, that placed them in a better position than applicants who had met the immigration rules and were denied such access while they served a two-year probationary period.

Mr David Burrowes (Enfield, Southgate) (Con): A key criticism regarding the use of article 8 is how it has appeared to give greater protection to convicted foreign criminals facing deportation than to British citizens facing extradition. Can the Home Secretary reassure my constituent Gary McKinnon and others like him facing issues of mental illness and autism—I do not want to trespass on to that particular case—that the principle of this motion will not affect genuine article 8 applications relating to extradition?

Mrs May: Extradition cases will continue to be looked at in line with the legislation that applies to extradition cases.

Mr David Winnick (Walsall North) (Lab): Following the question put by my hon. Friend the Member for Hayes and Harlington (John McDonnell), I should like some clarification. As has been emphasised several times this afternoon, the immigration rules are being changed, presumably arising from the Home Secretary’s statement last week. Will Parliament have the opportunity to debate those changes?

Mrs May: The immigration rules have been laid and it is open to any Member of the House to pray against them and see whether they can initiate a debate on them in the House. [Interruption.] It is open to anybody to pray against the immigration rules if they wish to debate the detail of them. I will refer to the changes that

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are being made. What we are saying today is that article 8 should be qualified in line with the immigration rules. I think I have repeated the motion several times.

Pete Wishart: rose—

Mrs May: The hon. Gentleman is getting himself terribly excited. Would he like to intervene again?

Pete Wishart: The right hon. Lady is going to have to explain very carefully and clearly exactly what we are debating today. Are we debating and agreeing to the rules that she announced in her statement last week or are we agreeing to restate once again the fact that article 8 is qualified in the terms of the European convention on human rights?

Mrs May: I am tempted to give exactly the same answer to the hon. Gentleman as I gave to him earlier. What we are debating is Parliament’s saying, first, that the House supports the Government in recognising the qualified nature of article 8 and, secondly, that the basis on which article 8 can be qualified is set out in the immigration rules. It is open to hon. Members to pray against the immigration rules if they wish to debate them. [Interruption.] The hon. Member for Perth and North Perthshire (Pete Wishart) asks whether we are agreeing to the immigration rules. What we are agreeing is that article 8 is qualified as set out in the immigration rules. There is then the separate issue—perhaps it would be helpful if I put it this way—of whether the immigration rules are prayed against and whether there is then a debate and a vote on those rules. I hope that I have helped him. There is a very important point at issue here: the courts have said that Parliament needs to give its views about the qualification of article 8 and that is what I am inviting hon. Members to do today.

Dr Hywel Francis (Aberavon) (Lab) rose—

Mrs May: I am going to make some progress now. I apologise but I have taken several questions from one hon. Member and I want to make some progress.

I was talking about the cases we have had, and I note that there are issues at appeal stage. Last year, 1,888 appeals against deportation were lodged. Of the 409 successful appeals, 185—that is 45%—were allowed on article 8 grounds. Those are the consequences of having had immigration rules that do not properly set out the qualified nature of article 8. The new immigration rules state how the balance should be struck between the public interest and individual rights. They take into account relevant case law, evidence, independent advice and public consultation, and they provide clear instructions for UK Border Agency caseworkers about the approach they must normally take in deciding article 8 claims. They provide the basis for a consistent, fair and transparent decision-making process, and I ask the House to agree that they reflect how family migration should be controlled in the public interest. Once endorsed by the House, the new immigration rules will form a framework that Parliament considers is compatible with article 8, on which the courts can therefore place greater weight as a statement of the public interest.

I turn now to the criteria in the new immigration rules that will be used to judge claims under article 8 in practice. The particular aspects of the new family

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immigration rules that are relevant are those on criminality, the best interests of a child, the family or private life of non-criminals, and the income threshold.

Perhaps nothing has done more to damage public confidence in the immigration system than when serious foreign criminals have used flimsy article 8 claims to avoid removal from this country. The European convention on human rights is clear—those who commit crimes do not have an unqualified right to respect for private and family life. So we are changing the immigration rules to make clear Parliament’s view that if someone is a serious criminal, if they have not behaved according to the standards we expect in this country, a weak claim to family life is not going to get in the way of their deportation. There is no place in this country for foreign criminals who threaten our safety and security and who undermine our rights and freedoms.

If a foreign criminal has received a custodial sentence of 12 months or more, deportation will normally be proportionate. Even if a criminal has received a shorter sentence, deportation will still normally be proportionate if their offending has caused serious harm or if they are a persistent offender who shows a particular disregard for the law. So where a foreign criminal is sentenced to less than four years, where no children are involved, and where the criminal has been here lawfully for less than 15 years, discounting their time in prison, deportation will normally be proportionate, even if they have a genuine and ongoing relationship with a partner in the UK. Even if the criminal has been here lawfully for 15 years, unless there are insurmountable obstacles to family life with that partner continuing overseas, deportation will still normally be proportionate.

Alok Sharma (Reading West) (Con): I welcome the motion and I hope it will have the support of all Members across the House, but can my right hon. Friend give me an assurance that in cases involving children, the best interests of the child will be a primary consideration in any decision that is made?

Mrs May: I shall come on to speak in more detail about the best interests of a child. The best interests of a child are covered by the Borders, Citizenship and Immigration Act 2009, and we are bringing that into the family rules.

Lisa Nandy (Wigan) (Lab): On that point, will the Home Secretary give way?

Mrs May: I shall speak in more detail about the best interests of the child, so perhaps the hon. Lady will wait and see if I answer her query in the comments that I make.

On the criminality issue first, the test for private life will also be a stringent one. Deportation will be proportionate unless the foreign criminal has been continuously resident in the UK for at least the past 20 years, excluding any period of imprisonment, and they have no social, cultural or family ties with their country of origin. For offenders aged under 25, deportation will be proportionate unless they have spent at least half their life residing continuously in the UK, excluding any period of imprisonment, and they have no ties with

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their country of origin. In all other cases, other than in exceptional circumstances, deportation of the foreign criminal will be proportionate.

Mr Julian Brazier (Canterbury) (Con): Will my right hon. Friend give way?

Mrs May: May I make a little more progress? My hon. Friend may choose to try again when I have finished dealing with this issue.

For the most serious foreign criminals—those sentenced to four or more years in prison—deportation will almost always be proportionate. Article 8 rights should prevent deportation of serious foreign criminals only in the most genuinely exceptional circumstances. So I ask the House to agree that the rights of the British public should outweigh the rights of foreign criminals in the way the new immigration rules describe. The choice for a foreign national wishing to avoid deportation is now simple: do not break the law.

I said that I would come on to the best interests of a child. The best interests of a child in the UK must always be a primary consideration. That is what the law requires and the new immigration rules reflect how the best interests of a child should be taken into account in striking a proportionate balance between an applicant’s family life and the public interest, for both criminals and non-criminals. For non-criminals, where a child would have to leave the UK as a consequence of the decision to remove their parent, the question is then whether it is reasonable to expect the child to leave. The best interests of the child will normally be met by remaining with their parents and returning with them to their country of origin, unless the child is a British citizen or has been resident in the UK for at least the past seven years and it would not be reasonable to expect the child to leave the UK.

For criminal parents, there is a broader range of circumstances in which the public interest may outweigh the best interests of a child. For serious foreign criminals, those sentenced to four or more years, the best interests of a child will only outweigh the public interest in deportation of the foreign criminal in exceptional circumstances. For criminals sentenced to between 12 months and less than four years, or those sentenced to less than 12 months but whose offending has caused serious harm or who are persistent offenders and show a particular disregard for the law, deportation will still normally be proportionate.

Lisa Nandy: I am grateful to the Home Secretary for giving way; I know that she wants to make some progress. Can she give an assurance that decision makers will not try to second-guess what is in the best interests of a child? We would not accept that in any other form of decision making relating to children. The individual circumstances of the child must be considered in the decision-making process.

Mrs May: One of the points about what we are doing, to which I tried to allude earlier, is that there is a statutory duty—in section 55 of the Borders, Citizenship and Immigration Act 2009—to safeguard and promote the welfare of children in the UK. We are now bringing the consideration of the best interests of the child formally into the new immigration family rules, which reinforces that point.

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I was talking about criminals who have been sentenced to between 12 months and less than four years or who are persistent offenders. Article 8 will prevent a deportation only if they have a genuine and subsisting parental relationship with the British citizen child or a child who has lived in the UK for at least the last seven years, if it would not be reasonable to expect the child to leave the UK with the foreign national criminal and if there is no other family member able to care for the child in the UK. Unless all three conditions are met, it will normally be proportionate to deport the criminal. If the criminal’s child is not a British citizen and has lived in the UK for less than seven years, the criminal can still be deported. If it will be reasonable to expect the child, whatever their nationality, to leave the UK, the criminal can still be deported. If there is another family member who can care for the child in the UK, the criminal can still be deported. These requirements represent a rational and proportionate qualification of article 8 rights in the interests of public safety and security, and I invite the House to endorse them.

Mr Brazier: My right hon. Friend is making a powerful case, and one that most Members will support, but is she aware that she has used the words “except in exceptional circumstances” seven or eight times already? If the court alone is free to determine what are exceptional circumstances, experience from other areas of the law suggests that in practice we might find that we make disappointingly little progress.

Mrs May: I recognise my hon. Friend’s concern, but there has to be a reference to exceptional circumstances. The way we are approaching it—setting out clearly the criteria that identify and describe the right to a private and family life—means that the exceptional circumstances will be far more limited than they have been up to now. As I hope he and others will understand from the detail I have given to the House, I have been going through every aspect of this carefully and setting out the expectations clearly. Therefore, I have every expectation that, in being able to look at those criteria and see what the public interest is in these matters, or how Parliament has defined the public interest, there would need to be truly exceptional circumstances indeed for someone to be allowed to remain in the UK outside the criteria. I have been clear that I have every expectation that this will have the impact we want it to have. If it does not, we will of course have to look at potential further measures.

Richard Drax (South Dorset) (Con): I support the direction in which the Home Secretary is heading but have just one question. I might be jumping the gun, but given that so many countries practise torture—I think that she will reaffirm the position that prisoners are not sent back to such countries—what do we do in cases where we cannot send a criminal back to their country of origin because of this. As I have said, torture is used frequently around the world.

Mrs May: Under the convention, the question of whether someone will be subjected to torture relates not to article 8, but to article 3, I think—[Interruption.] I am getting nods from hon. Members. Of course, the European convention on human rights includes the statement that people should not be sent back to countries where they will be subject to torture, but the issue under

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discussion is one reason why, on a number of matters, we have negotiated with a number of countries throughout the world what is called “deportation with assurances”. This has been tested in the courts and enables us to deport individuals, with the assurance, which we have achieved through a memorandum of understanding, that they—individuals in those circumstances—will not be subject to torture when they are returned.

Dr Francis: Given the complexity of the changes and their number, instead of our having a debate today, would it not be more appropriate to refer the matter for scrutiny to some of the many Select Committees of this House, including my own? As Chair of the Joint Committee on Human Rights, I raised the matter earlier this afternoon with its members, who agreed with me that this was a matter of considerable concern which should be referred to our Committee. To illustrate the issue’s complexities, I note that 75 years ago this month 6,000 Basque refugee children arrived in this country. Would they have been excluded under these new rules?

Mrs May: I recognise the work undertaken on the matter by the Joint Committee on Human Rights, which the hon. Gentleman chairs, and, if he wishes to see a debate about the immigration rules, it is of course entirely open to the Committee and, indeed, to the hon. Gentleman himself, as I indicated earlier, to pray against them, but today I am asking Parliament to say, “We recognise there is a qualified right, and that qualification is set out in the immigration rules agreed by the House.”

The new immigration rules will demand that, for non-criminals without children to remain in the UK on the basis of their family life, they will have to show that they are in a genuine relationship. If they can pay their way and meet the income threshold and other requirements, they can qualify for settlement after five years. If they cannot meet those requirements, but insurmountable obstacles to family life with their partner are continuing overseas, they can enter a 10-year route to settlement.

To remain in the UK on the basis of a private life, applicants must have resided continuously in the UK for at least 20 years, discounting any period of imprisonment; or they must be under 18 years old and have resided continuously in the UK for at least seven years; or they must be aged 18 or over but under 25 and have spent at least half their life residing continuously in the UK; or they must be aged 18 or over, have resided continuously in the UK for less than 20 years but have no social, cultural or family ties with their country of origin. If applicants qualify under those criteria, they will enter a 10-year route to settlement.

The European convention on human rights also makes it clear that article 8 may be interfered with to protect the economic well-being of the UK. Strasbourg case law has established that this includes controlling immigration. This Government believe that anyone who wishes to bring a foreign spouse, partner or dependant to the UK should be able to support them financially, and we sought advice from the Migration Advisory Committee on the minimum income level that would allow a British citizen or a person with settled status in the UK to support an immigrant partner or dependant.

Following that advice, we have set the income threshold at £18,600, a figure that was at the lower end of the range recommended by the Committee, but the level at

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which a sponsor can generally support themselves and a partner without accessing income-related benefits. Children, of course, involve additional costs to the state, particularly in schooling, so, again following advice from the Migration Advisory Committee, the income threshold will rise to £22,400 for a partner and one child, with an additional £2,400 for each further child.

Both partners’ earnings from employment in the UK can be counted towards the new requirement, together with their non-employment and pension income, and significant savings can also be used to offset any deficit in income, but third-party support in the form of subsidies or undertakings will not be allowed.

An applicant whose sponsor is in receipt of a specified disability-related benefit or carer’s allowance will be exempt from the new financial requirement. We believe that the new financial requirements are necessary, proportionate and firmly in the public interest, and I trust Parliament will endorse that view.

It may be helpful to the House if I set out some examples of how the new rules might operate in practice. In a non-criminal context, there might be the example of a former student who came to the UK with his partner and one-year-old child. His relationship with his partner has now broken down, and he has seen his child—now aged four—only once in the last year. He has no role in the child’s daily care. His partner, also a student, continues to study, and she and the child will remain here for another year. As the former student’s course has now ended, he has applied under the family rules on the basis of his child. In this case, the child is not British and has not lived in the UK for the past seven years. The father is not a primary carer and does not appear to have a genuine and subsisting relationship with his child. His former partner is also here only on a temporary basis for one more year. The application would therefore be refused.

Another example might be that of a young married couple who met overseas. The woman subsequently came to the UK to study and they married here. The man is a British citizen who earns just less than the minimum income threshold, and the woman is no longer a student and is not working. The couple are genuine and their relationship is ongoing, and they may still be able to meet the income requirement, but if not, and if there is no evidence of any insurmountable obstacles to their continuing their family life together overseas, we would expect them to do so.

In criminal cases, there might be an example of a serious foreign criminal sentenced to four years imprisonment for class A drugs supply. He has no family in the UK but claims that over his previous 15 years in this country he has built up a substantial private life. This man’s crimes represent such a serious level of offending that they outweigh any article 8 issues. There is no evidence that his case is exceptional, and this criminal could expect to be deported.

Another foreign criminal is sentenced to two years’ imprisonment for actual bodily harm. He has been in the UK lawfully for seven years before being sent to prison and has a partner who is settled in the UK. Again, there do not appear to be any exceptional circumstances in this case. The criminal has been lawfully resident in the UK for less than 15 years. It is therefore proportionate and in the public interest for this criminal to be deported.

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For too long, the rights of foreign criminals have been placed above the rights of the British public, and for too long Parliament has not given its view on when it is proportionate to remove those criminals in the public interest. We are putting that right. We are making it clear that the British public’s right to protection from crime trumps a foreign criminal’s weak claim to family life, and we are allowing the views of those in Parliament, as the democratically elected representatives of the British people, to be heard on this issue loud and clear. We trust that the courts will give due weight to a statement from this House.

Today I have outlined common-sense proposals with which I hope all right hon. and hon. Members can agree. I ask the House to approve this motion and to let its views be heard. I commend the motion to the House.

5.11 pm

Yvette Cooper (Normanton, Pontefract and Castleford) (Lab): The Government have raised concerns about how article 8 of the European convention on human rights and the Human Rights Act 1998 are interpreted in cases involving foreign criminals convicted in the UK and then put up for deportation. I agree with the Home Secretary that the Government should be able to deport foreign citizens who have come to Britain and then broken British laws. People who come here from abroad need to abide by our laws and our values.

As the House will know, in 2007 the Labour Government introduced provisions for the automatic deportation of foreign criminals in the UK Borders Act 2007, and the number of foreign criminals deported each year trebled from 1,673 in 2005 to 5,528 in 2009. The Home Secretary has raised what the Home Office says are 185 cases that have gone to appeal each year on grounds of family life. We agree that there is a problem, with people finding it hard to understand the justice of the decision by the courts in some cases where foreign criminals have not been deported.

Article 8 is a qualified right. It says:

“Everyone has the right to respect for his private and family life.”

However, it also says that that needs to be balanced with

“the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

It is not like article 3 on the prevention of torture, which is properly an absolute right, and which is not affected by this motion.

It stands to reason that article 8 should be a qualified right. People can be imprisoned if they break the law even if it affects their family life. The courts decide the balance of rights in individual cases, but it is part of our legal framework that Parliament can set out how qualified rights should be balanced in different areas; indeed, Parliament does so all the time through legislation. That relationship between Parliament and the courts is made even more explicit in the Human Rights Act, where Parliament is actively encouraged to debate how the rights should be balanced, and the judiciary are expected to take that into account.

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Henry Smith (Crawley) (Con): That being the case, why has our system apparently been so unbalanced over the past decade?

Yvette Cooper: It was the Labour Government who introduced the UK Borders Act 2007, which provided for the automatic deportation of foreign criminals. The number of deportations of foreign criminals increased substantially from 2005 until the election in 2010, after which the number fell significantly. I therefore say to the hon. Gentleman that his Government bear some responsibility for the action that is being taken. More needs to be done in practice to deport foreign criminals, as opposed simply to discussions of the motion today.

Mr Clappison: If the right hon. Lady is proceeding down that track, perhaps she will remind the House how many prisoners were found not to have been considered for deportation in 2006, let alone have their article 8 rights taken into account. Will she confirm that the figure was just over 1,000?

Yvette Cooper: It is interesting that the hon. Gentleman has mentioned the figure of 1,000. The number of foreign criminals being deported each year trebled between 2005 and 2009 to more than 5,000. In the most recent financial year, the number of foreign criminals being deported from this country fell by 1,000 compared with the previous year. The UK Border Agency has raised a series of concerns about how individual cases are being dealt with and the problems with travel documentation. Those are effectively administrative concerns. Some 1,000 cases are not being dealt with, not as a result of article 8, but because of serious problems with administration at the UK Border Agency. I think that that is serious, and I hope that he does too.

Mr Clappison rose

Yvette Cooper: I will give way to the hon. Gentleman one more time.

Mr Clappison: Is the right hon. Lady telling us that the Home Secretary of the day, Charles Clarke, who was an honourable man, resigned because he presided over such a glorious success?

Yvette Cooper: As the hon. Gentleman will know, as a result of the problems over foreign criminals, a series of actions and measures were taken that increased the number of foreign criminals being deported. The problem for the Government is that the actions that they have taken seem to have reduced the number of foreign criminals being deported by more than 1,000 a year—a drop of nearly 20% in 12 months. That means that foreign criminals who should be deported are staying in this country and in the community. The UK Border Agency is not deporting them because of the chaos and fiasco within it.

Alok Sharma: Will the right hon. Lady be supporting the motion this evening? Everything that she is saying suggests that she supports what the Home Secretary has set out.

Yvette Cooper: I think that we need action to deport more foreign criminals. That includes more practical action through the UK Border Agency. The Home

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Secretary and the Minister for Immigration need to explain what they think the motion means. I will come on to that now, because it is an important issue.

The relationship between Parliament and the courts is made explicit in the Human Rights Act 1998. Parliament is actively encouraged to debate the way in which rights should be balanced, and the judiciary is expected to take that into account. Similarly, the British courts cannot strike down an Act of Parliament or primary legislation on immigration, even if they think that it does not comply with the Human Rights Act. Parliament has to decide how to respond if that is the case. That is the legal and democratic framework within which we operate. As part of that, it is reasonable for Parliament to express its view on the balance of different rights, and in particular the balance of different qualified rights. Indeed, we do so all the time through our legislation.

Jeremy Corbyn: My right hon. Friend will have heard the intervention of the Chair of the Joint Committee on Human Rights. Does she not think that it would have been better if this proposal had been laid on the Table today to enable his Committee to examine it and its implications for our participation in the European convention on human rights?

Yvette Cooper: My hon. Friend makes an important point, because the Joint Committee on Human Rights does important work. The status of the motion is unclear, because we do not know exactly how the Home Secretary expects it to operate. For example, we know that the new immigration rules affecting foreign criminals, which were set out last week, explicitly refer to how article 8 should be addressed. We believe that is legitimate, but other immigration rules do not make such reference. The rules on foreign criminals also allow the courts to consider exceptional cases, but the process remains deeply unsatisfactory and confused. The Home Secretary has said that she wants to send clear signals to the courts, but she is not sending clear signals to the House.

Mr Cash: Is the Home Secretary aware of the series of speeches made by the Lord Chief Justice to the Judicial Studies Board and others? He has made it abundantly clear that in his opinion the judiciary, including the senior judiciary, have given far too much attention to the Strasbourg precedents and not enough to what he describes as the “golden thread” of the English common law. He says that it is therefore essential that we get this right and do not engage in generalised waffle about the question—

Mr Deputy Speaker (Mr Lindsay Hoyle): Order. The hon. Gentleman has had two interventions that have taken up speaking time. I am sure he would not want to do that, in case he wants to catch my eye later.

Yvette Cooper: I am not sure whether the hon. Member for Stone (Mr Cash) was accusing me or the Home Secretary of “generalised waffle”. Given his record, I fear that it could have been either of us. It was probably both.

I am sure the hon. Gentleman will have read considerably more of the judicial pronouncements on this subject than I have, but the House is being challenged to send a clear signal to the courts, and we are not being clear

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about what we are doing in the motion. The status of the motion remains unclear because it is neither primary nor secondary legislation.

Mr Straw: Although the hon. Member for Stone (Mr Cash) is quite right to refer to the important observations of the Lord Chief Justice, does my right hon. Friend accept that even if the Human Rights Act had never have been passed, we would still have been faced with this conundrum about the balance between the articles in the European convention on human rights so long as we remained committed to the convention? That is a key part of the Conservative party’s policy as well as ours.

Yvette Cooper: My right hon. Friend is right. The convention provides an important framework, and like him I understand that the Conservative party remains committed to it. A strength of the Human Rights Act—I know he was a key pioneer in bringing it into British law—is that it provides Parliament with the ability to debate article 8. It is legitimate for us to do so as part of our debate on immigration rules and all kinds of other legislation.

Mr Burrowes rose

Yvette Cooper: I have given way many times, but I will do so one last time.

Mr Burrowes: I will help the right hon. Lady not to take any further interventions by asking her to be clear about the Opposition’s position. They cannot have it both ways. I understand that they accept the observation of the House of Lords in the Huang case in 2007 that immigration lacked a clear framework, but do they also accept the observation that that was because the immigration rules

“are not the product of active debate in Parliament”?

We are having that debate today, so surely she should welcome that and accept the motion. Let us not just talk about it, let us have some action.

Yvette Cooper: The hon. Gentleman is right that we need a proper debate in Parliament and proper scrutiny. However, there are concerns about how the Home Secretary has set the matter out today. For example, the motion represents neither primary nor secondary legislation, so it is not clear whether the Home Secretary wants it to trump case law. She spent some time reading individual cases on to the record, so we can only assume that she wants the motion and today’s debate to trump case law and individual decisions. However, it is only a motion of the House. We have told her that we are happy to work with her on primary legislation to ensure that there is a proper legal framework.

Pete Wishart rose

Mr Rob Wilson (Reading East) (Con) rose

Yvette Cooper: I will give way one last time, to the hon. Member for Perth and North Perthshire (Pete Wishart), who I know intervened on the Home Secretary.

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Pete Wishart: Is it the right hon. Lady’s understanding that what the motion asks us to do—she is absolutely right that it is neither primary nor secondary legislation—is sign up to the Home Secretary’s immigration rules applying in their totality unless the shadow Home Secretary and her colleagues introduce another motion to challenge them?

Yvette Cooper: That is not what the motion says. It deals simply with an issue of principle about whether Parliament should be able to set out how article 8 is interpreted. Various lawyers have said that the motion is little more than a statement of fact and is effectively the equivalent of the Home Secretary regarding the immigration rules as compliant with article 8.

That is what the motion does, but it is not clear whether the Home Secretary expects us to endorse the detailed content of individual immigration rules, only some of which she discussed in her speech—many were not discussed. She referred, for example, to foreign criminals. The Opposition believe that the Government’s broad approach to foreign criminals is the right one—we think it is right to take stronger action, including through the immigration rules and the Border Agency—but this process is not appropriate as a general rule for the scrutiny of the content of immigration rules. For Parliament to attempt such scrutiny just two sitting days after the rules were published would be inappropriate, and it would be unlikely to reassure the courts that the detail had been properly scrutinised and debated.

In particular, today’s debate cannot be about the detail of the wider family immigration rules, which were published only last week. Further scrutiny will be needed, because there are concerns about whether the rules are the most effective way of protecting the taxpayer, and whether they are fair and just. Those concerns should be debated properly, but that cannot happen in a debate on a general motion.

The motion refers simply to the broad immigration rules and cannot suffice as proper scrutiny or endorsement of the changes to individual rules. The Opposition are happy to support the Government’s approach to tackling foreign criminals, because we believe that more action needs to be taken, including through the immigration rules. We also believe the Government are right to consider how to ensure that article 8 is interpreted. In that way, they can provide a framework of guidance when it comes to dealing with foreign criminals through the immigration rules.

There is a wider challenge. The Home Secretary’s reason for introducing the motion was that she is concerned that more foreign criminals should be deported. She will know that the number of foreign criminals deported in 2011-12 fell by nearly 18%. If all those in the cases to which she referred—the 185 cases that the Home Office said were granted appeal on article 8 grounds—were instead deported, the number deported in the most recent financial year would still have fallen by around 15% on the previous year. Whatever the Home Secretary’s intention, the motion still deals with only a small minority of cases involving foreign criminals.

The border inspector has made it clear that one of the main reasons why people are not being deported is difficulty in obtaining travel documentation. Everyone recognises that that can be difficult and untimely in some cases, but those practical operations have clearly

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become significantly worse since the election, which is a deep concern. The Home Secretary has said nothing today to answer those concerns or to address the growing concern that the Border Agency’s performance is deteriorating substantially on the Government’s watch.

The Opposition want to be able to support the Government’s approach to tackling foreign criminals, but we need more answers from the Home Secretary about what she hopes the motion will do.

Mrs May: There is a very simple question for the shadow Home Secretary. Does she believe it is right that, as the courts have said, Parliament should give a clear view on what the public interest is in relation to the operation of article 8 of the European convention on human rights, on the right to a private and family life? If she believes that that is the case, and that fewer foreign criminals should be allowed to stay in this country on the basis of article 8, she should support the motion and give a clear message to the courts. I am beginning to think that she is trying to confuse the courts and to prevent them from taking that interpretation of the motion. Does she support a clear message to the courts or not?

Yvette Cooper: The Home Secretary talks about clear messages, but she is not giving a clear message to the House, never mind to the courts. She has been confused at every step about what the motion is supposed to do. Time and again, she has been asked whether it is supposed to trump case law or endorse the details of individual immigration rules, on which no opportunity for proper scrutiny has been given, and which have not even gone through the normal processes in the House. It is not clear whether this is supposed to be an endorsement of the existing immigration rules or the future immigration rules. She has not made her position clear.

We would like to be able to support the Home Secretary in her principled statement that article 8 should be discussed by the House and is a matter for legitimate debate. We also want to support her in taking action to deport more foreign criminals, but we urge her to do something about the real problem, which she is still ignoring. She also needs to provide answers to the House about how the detail on other aspects of the immigration rules, particularly on family and other parts of her proposed immigration changes, will be scrutinised, and whether she is trying to bypass the normal scrutiny processes.

The Home Secretary has not chosen a normal approach today. She needs to do more to deport more foreign criminals, but she should not try to subvert normal processes and should be straight with the House about what she is asking it to do.

Jeremy Corbyn: On a point of order, Mr Deputy Speaker. In her speech, the Home Secretary referred extensively to rules laid before the House but not prayed against and therefore not debated. Is it in order for us to discuss the contents of those proposed rules, because that is exactly what she did throughout her opening speech?

Mr Deputy Speaker (Mr Lindsay Hoyle): Yes.

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5.31 pm

Mr Julian Brazier (Canterbury) (Con): I shall be fairly brief. In one sense, it is a pleasure to follow the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper), because I would like to pick up one or two of her points. Her speech started as though it would be bipartisan but ended on an extremely partisan note.

A couple of background points should be made immediately. First, under the previous Government, there was a surge in net immigration quite unprecedented in our country’s history. Even according to official figures, more than 2 million more people entered the country than left it under the last Labour Government, but given that border controls had largely broken down and we were no longer measuring embarkation, there is a range of statistics and estimates suggesting that the numbers might be much higher. For example, the Office for National Statistics keeps on revising up its population projection statistics. In 2004, it said that by 2050 the UK population would reach 67 million, but it now says that in just 15 years, it will be 73 million—twice the increase.

Secondly, the shadow Home Secretary made much of the number of deportations of foreign criminals, looking particularly at a single year. The statistic she did not share with the House is that the number of foreign criminals in British prisons almost trebled under the Labour Government, from 4,000 to more than 11,000. That should concern us all.

Graham Jones (Hyndburn) (Lab): Is that not actually a good statistic showing that the police were catching criminals and locking them up?

Mr Brazier: The hon. Gentleman is obviously not familiar with the statistics. The number of criminals in the criminal justice system, or in prison, rose by between 20% and by 30%—I cite these figures from memory—over that period. The fact that the number of foreign criminals trebled suggests that much was wrong with our border controls at the time.

I strongly support what my right hon. Friend the Home Secretary is trying to do. She and the Minister for Immigration, my hon. Friend the Member for Ashford (Damian Green), my constituency neighbour who is sitting next to her, have taken a brave stand in this area, against a great deal of criticism by much of the media and many parts of the legal establishment. My concerns about what we are doing are all to do with the fact that we are not going far enough. They are in no way about opposing what we are trying to do.

My first concern is one that I mentioned in an intervention on my right hon. Friend. Experience from a number of other areas of law—not least family law—suggests that the courts might drive a coach and horses through what we are trying to achieve by putting the words “except in exceptional circumstances” in each of the relevant places. An alternative would be either simply not to include those words at all, or to say that in exceptional circumstances cases should be considered again by the Home Office.

My next concern is about the way in which we are looking at the rights of children. I hope that most Members of this House—at least those who have been here for a while—will be aware of the amount of time I

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have spent pursuing the concerns of the most disadvantaged and vulnerable children, particularly in adoption and fostering, and the way in which child witnesses are treated in court. I have to say that the most colossal amount of garbage has come out of some of the court cases. The idea that it is somehow automatically in the child’s interests that a parent who is also a violent criminal who has committed a serious criminal offence should be kept in the country, whether or not the child has regular contact with that parent, seems extraordinary. In many cases it is in the child’s interests that that individual should be deported.

My next concern is that although we are taking a tough line with foreign criminals—something I strongly support—I would urge my right hon. Friend to consider applying some of this thinking more widely. A large proportion of the people who are in this country illegally came in through a perfectly legal route and have chosen to overstay. Two of the most common types of cases involve those who came in on student visas and overstayed—I represent the largest number of students in any constituency in the country—and those who came in on family visits and overstayed. By allowing the courts to continue treating each case on its own merits, from scratch, we are making it harder and harder to justify allowing people to come in for perfectly legitimate reasons.

We want to encourage students into this country, and of course people should be able to come in for family weddings and all sorts of other reasons. However, if it is possible for them to bring an article 8 family connection case after they get here, every time someone who has relatives in this country comes here as a student—I am dealing with one such case at the moment, through my constituency postbag—and every time someone who, by definition, has relatives in this country comes over for a family wedding, Home Office officials will inevitably look at those cases with a jaundiced eye. There is a strong case for saying that if those who come in through certain routes then want to make an article 8 application, they should be able to do so only after they have left the country, applying through the normal routes, irrespective of any exceptional circumstances.

I want to make only one wider point. We get few opportunities in this House to debate the wider issues around immigration. I know from my experience on the doorstep, not only from working in my constituency but from helping in a number of others—in the general election, in local elections and in the marvellous election that has just delivered Boris Johnson as Mayor of London again—that people are deeply concerned about the wider issues around immigration. I am fully behind everything that my right hon. Friend the Home Secretary and my hon. Friend the Minister for Immigration are trying to do in this regard, but we are a long way from meeting the target, and the target itself seems to regard elderly couples retiring to live in the sun as somehow a balance for young people from areas with very high birth rates coming to this country. We have a very long way to go.

I want to end by saying that we must be clear on one central point. This is an important measure and we must send a message to the courts that it is we in Parliament, not the courts, who are answerable to the people. The courts must therefore listen to what we have to say.

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5.40 pm

Mr Jack Straw (Blackburn) (Lab): The hon. Member for Canterbury (Mr Brazier) has just said that he wants the House to discuss the wider issues of immigration, and I entirely agree with him. The immigration rule changes, to which the motion refers in a coda, go much wider than simply the interpretation of article 8 in respect of the deportation of foreign criminals. I would say, parenthetically, to the Home Secretary that while I support many of the other changes, I remain concerned about some of them, not least the removal of the right of appeal in family visit cases, which I introduced in the late 1990s. That measure has worked well and fairly, and in my experience it has led to abuse in very few cases. I therefore support the motion before the House in the context in which it has been brought forward—namely, to deal with the problem of the deportation of foreign national criminals.

The particular case that got me heavily involved in this matter as a constituency MP was the death in a motor accident of young Amy Houston. She was walking with her brother in Newfield drive in my constituency when a vehicle driven by an asylum seeker, Mr Mohammed Ibrahim, knocked her down and killed her, although she was alive for six hours after the event. He drove off without stopping or giving up any details. Amy’s bereaved father, Paul Houston, lives in the constituency of my hon. Friend the Member for Hyndburn (Graham Jones), who will give the House many more details of the case.

That asylum seeker, an Iraqi Kurd, was convicted of a series of offences arising from the accident. He had no driving qualifications, he was driving while disqualified and uninsured, and driving without a valid test certificate. Subsequently, he was cautioned by the police for the possession of cannabis and for burglary and theft. He was again convicted of driving while disqualified and uninsured, and, six years after the accident, convicted of the offences of harassment, damage to property and theft, for which he was fined. In 2008, he was also arrested and fined £200 for offences arising from a dispute with the woman he subsequently claimed to have married. I shall call her Mrs Smith, as there are children involved and I have no wish to involve them.

That man’s rights of appeal were completely exhausted, and he was due to be sent back. When the matter went to appeal—at Mr Houston’s behest and mine—to an immigration judge, one of the points that the judge regarded as acting in the man’s favour was the fact that the Home Office had made no effort to deport him between 2002, when his right to remain here was exhausted, and 2006. That was because it would not have been safe to deport Mr Ibrahim to Iraq at that time, for reasons of which everybody was aware. Notwithstanding that, it was decided that the relationship he had formed with Mrs Smith, by whom he had had two children, was sufficient to justify a family life entitlement under article 8.

I have to say—I and my right hon. Friend the Member for Kingston upon Hull West and Hessle (Alan Johnson) looked at this—that the evidence of a successful family life was very flimsy indeed. There was total confusion in the court about whether the two had been married and where the marriage had taken place—in Blackburn or Birmingham. Those two places are different and separated by well over 100 miles. There was dispute about the

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date. On her own admission, Mrs Smith visited this man only once during the nine months in which he was detained as an immigration detainee.

At the behest of my right hon. Friend, the former Home Secretary, there was a further appeal. We had hoped that the courts would use this as a test case to change the law in the direction that the current Home Secretary now rightly seeks. I regret to say that, sadly, that did not happen. As a result, I strongly believe that the only alternative, however imperfect, is to bring forward this motion and try to get a change in the approach of the courts.

I want to apologise to you, Mr Deputy Speaker, to the Home Secretary and to the House, because I have to leave shortly before 6 o’clock. I also apologise to the Minister for Immigration, as I shall not be in my place to hear his winding-up speech—unusually, in my case.

In saying all this, I make no criticism of the judiciary who dealt with these cases. One thing I learned from much contact with the senior judiciary is that precisely because the system rightly sees itself as subordinate to Parliament but does its best to interpret Parliament’s will, the courts sometimes get caught by precedent. As senior members of the judiciary sometimes told me in respect of other cases, unless there is an appeal that really hits the spot, which they can then sort out, the only remaining course is sometimes for Parliament to seek to clarify the law.

Mr Cash rose

Mr Brazier rose

Mr Straw: I give way briefly to the hon. Member for Stone (Mr Cash) first.

Mr Cash: I am most grateful. In dealing with the critical question of proportionality, which is what arises in these cases when a balance needs to be struck by the courts either way, does the right hon. Gentleman agree that, in the absence of very express provision, it will be impossible to fetter the court’s discretion—even with a steer from the wording—in the determination? The evidence is that individual judges will tend to continue to make their own judgment, whatever Parliament seeks to say.

Mr Straw: I am afraid that I do not accept that. A feature of our courts is that they are, quite properly, very conscious of the need to apply the law as they believe Parliament has laid it down. I am confident—I cannot be certain—that, had this proposed approach been passed by Parliament and if necessary enshrined in legislation, the courts would have been able to exercise their judgment on proportionality in a way that showed proper respect to the Houston family and to that poor child rather than to Mr Ibrahim and the woman with whom, in my judgment, he formed a relationship solely in order to evade immigration control and deportation.

Mr Brazier: The right hon. Gentleman is generous in giving way. He is also generous-spirited in saying that he makes no criticism of the judge concerned, in the light of that truly extraordinary judgment. Does he accept, however, that if the motion is passed and such cases continue to arise, it will be time for parliamentarians to start to criticise judges?

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Mr Straw: I think that it is a matter of style. It is perfectly right and proper for Members of Parliament to dissent from what the courts have said, as I do here, but I do not think it proper for them to insult or abuse members of the judiciary. It is the essence of our democracy that we have a separation of powers, and that can work only if each side respects it.

My final point is one that I put briefly to the Home Secretary when she made a statement, and it concerns the ending of the confidentiality of judgments in cases such as this. There is good reason for asylum cases themselves to be confidential; indeed, we are bound to that by the 1951 Refugee convention. However, I do not believe that when someone has failed in an asylum case and subsequently seeks something very different, it is right or in the public interest for the whole of the judicial determinations—pages of them—to be effectively kept secret.

It was only by accident that I got hold of that judgment. I was asked by the Home Office not to disclose it to Mr Houston. It was an extraordinary circumstance. Confidentiality in such cases means that the argument that the judiciary come up with is not open to the public scrutiny that is essential if our law is to apply itself properly.

5.51 pm

Kris Hopkins (Keighley) (Con): Thank you, Mr Deputy Speaker, for giving me the opportunity to contribute to what I think is a very important debate. My hon. Friend the Member for Canterbury (Mr Brazier) spoke of the importance of the issue of immigration on the doorstep. Time and again, we hear concern and anger at the frustration that the Government experience when they attempt to deport someone who has committed a serious criminal act.

Ours is a very generous country, which rightly offers the hand of friendship and help to people wherever they may come from. That has been demonstrated by our commitment to international development, and also by our top record on asylum. It is important for us to start from that position. However, I believe that we as a nation have a right to set out the rules on immigration, and to determine migration into this country. That is why I support these rules and the measures that the Government have already taken, such as capping economic migration from outside the European Union, introducing minimum skills, closing the tier 1 general route that has allowed self-selecting migrants to come here without a job, reforming the student visa system, and setting a minimum income for those who wish to bring a spouse or family member here.

I know that some people in my constituency find that last measure upsetting, and they have made representations to me, but why should the British public have to bear that financial burden? If someone wants to come to this country—which is a great country—and gain from all the services, facilities, democracy and freedom of speech that it provides, that person should be required to meet some minimum standards.

We have been revisiting the citizenship test, and I think it important that British history and culture are at the centre of it. Now we are rewriting the immigration rules to help prevent article 8 of the European convention

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on human rights from being abused, and I think that important as well. I want criminals to be deported from this country as soon as possible, and I welcome the fact that we have removed 4,500 in the last year. I take the point made by the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper), and I look forward to the Government’s explanation about the variation of 1,000. I want every single person who can be deported to be deported.

Each incremental change that we make is important. We should not stop reminding individuals that it is a privilege to come to this country, live in it and gain citizenship of it. Those who abuse that privilege should lose it. The last Government lost control of migration, and they lost public confidence in our border controls. We have a huge responsibility to right that wrong.

Although, as we have mentioned, immigration is raised constantly on the doorstep, in our mail boxes, in the pub, and wherever I go as a politician, only a small number of Members are present to contribute to today’s debate. If people do not engage in public debate on the issue because of the stigma associated with it, I would say to them that it is not racist to debate immigration. It is important for us to contribute our voice, take ownership of immigration issues, face up to the fact that policies have failed in the past, and enable the public to be confident about the fact that we take responsibility. If we do not, fascist organisations will step into the void that we have created by not discussing these issues.

Mr Brazier: My hon. Friend is making a powerful speech. Does he agree that it is supremely ironic that the one major public figure who has had the strength of character to say that many decent people have ended up voting for horrible organisations such as the British National party because they have given up on mainstream parties is our noble Friend Baroness Warsi?

Kris Hopkins: I think our noble Friend makes an extremely important contribution to the debate.

Debating this matter is an essential part of the democratic process, and I want to encourage more people to do it. We wince at the language that is used, but let us get over the issue of language: let us have the debate in all parts of the country, and give people confidence by doing so. The debate has provided an opportunity for the will of the House to be seen, and I look forward to voting in favour of the motion.

5.57 pm

John McDonnell (Hayes and Harlington) (Lab): Unfortunately the Home Secretary is not present, but let me place on record that I have a good deal of time for her. I think that her speech a few years ago about “the nasty party” was incredibly courageous. [Interruption.] I was trying to make a wider point. I think that it helped to change a bit of the culture of politics in this country. However, I am extremely disappointed in the process that is taking place today. I no longer know what we are debating, or what the purpose of the debate is. If its purpose is to establish some form of credentials for the House—to cause the courts to acknowledge statements in the House and thus, to an extent, shape their judgments in the light of the debate—this is not the way to go about it.

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Normally we would debate legislation, and the legislative proposals would be published in good time. Often, as one of my hon. Friends pointed out, those proposals would be presented to the relevant Committee of the House, which in this instance would probably be the Joint Committee on Human Rights. We would receive a report, a legislative proposal would be debated in the House in some form, and then, as a result of a vote, legislation would be enacted. That is the way in which we not only legislate, but shape the interpretation of legislation by the courts.

Pete Wishart: Like the hon. Gentleman, I am totally confused about what we are voting for this evening. There have been three explanations of what the vote at 8.30 pm will entail, but the danger is that we may be voting for the immigration rules in their entirety, as laid out last week. That is unacceptable to me, and I am sure that it is unacceptable to the hon. Gentleman.

John McDonnell: Let me finish the point I was making, which is that this is an object lesson in how not to go about influencing others, and certainly not the courts. The immigration rules’ legislative proposals were published only a week ago, and there are 45 pages of amendments to what is an even more detailed document. I ask Members who have read all that material to put up their hand. For the benefit of Hansard, I note that one Member has raised their arm—or perhaps two.

Mr Cash: As an assiduous reader of these documents, may I mention that the Journal Office has advised that the use of an approval motion for such rules is normally subject to negative procedure, although that is not taking place in this instance, and the contention that Parliament’s view is subject to review by the courts is also surprising in the context of article 9 of the Bill of Rights? The Clerks have clearly therefore taken on board some serious points regarding the procedure that is being followed.

John McDonnell: I heard those points when they were made previously, and the House of Commons Library note provided to us describes this as an unusual process—I put it no stronger than that. We are having this debate only a matter of days after having received the detailed and complex documents to which I referred, and I simply do not understand the reason for this haste.

Moreover, the first section of the motion is a statement of the obvious; article 8 is, indeed, a qualified right. It then tries to inveigle us into a commitment to support the immigration rules that we received only a few days ago, and which have not been debated. That is an unacceptable attempt to bounce the House into agreeing to something that many of us have genuine concerns about.

We would welcome a wider debate. I know this might sound unusual, but, frankly, I want to consult my constituents on the matter. I want to understand their concerns about these new rules. My anxiety is that we are now entering a political phase. During some Members’ speeches, certain other Members were suggesting, “Well, vote against the motion.” I want nothing to do with this motion, but they were shouting and bearding people

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about voting against the motion—


I do not think the hon. Member for Crewe and Nantwich (Mr Timpson) has been in the Chamber since the beginning of the debate, has he?

Mr Edward Timpson (Crewe and Nantwich) (Con): I have.

John McDonnell: I apologise and withdraw that comment, therefore, but there were definitely shouts of, “Well, vote against it.” Such behaviour draws us into the realm of political knockabout, when we should be having a considered debate about the legislative proposals, and what that results in is clear to anybody who has seen the Daily Telegraph campaign currently being waged, in which it is naming judges and publishing their performance in individual trials. It is saying how many people those judges have deported over the last period. This is taking the form of a witch hunt, therefore, and it is an unacceptable attempt to influence the judiciary. I agree with the hon. Member for Keighley (Kris Hopkins) that there needs to be an honest debate about immigration, but to drag things down into a political knockabout on how to vote on a motion that is irrelevant in respect of any legislation is unacceptable and clouds the atmosphere in this House, and thereby undermines its ability to influence any law court or judge.

The procedure the Government have introduced today completely undermines the credibility of the House on this matter. We need to get back to the normal processes of legislation. We need to ensure Members have the necessary information well in advance of any debate, rather than having it in the curtailed time scale that we have experienced on this occasion—and that is particularly important in this instance, as the matter under discussion is very complex, and very sensitive as well. The full procedures of the House should be followed, including referring the matter for consideration by the relevant Committees of the House which will then report back, and giving Members the time to consult their constituents and then to come to a considered view and arrive at a decision on a vote. That vote may well prove to be unanimous, because people will feel they have been fully involved. No court can interpret this current process as expressing the definitive will of the House, however, because many Members will have not a clue what we are voting on as the information has been provided so late.

Mr Cash: I just wonder whether the hon. Gentleman noticed that the Home Secretary referred to the fact that as yet nobody has placed a prayer of annulment to the immigration rules. I understand the rules were introduced into the House only on 13 June. I therefore suspect that, in the event of such a prayer being put, he has the option—and the right—to call for a vote on the substance of the rules.

John McDonnell: That is exactly the point I was about to make. It is important that Members take their responsibilities seriously and that the motion is prayed against. That will enable us to go through the due process of this House, so we can arrive at a decision that Members will feel party to, and that then will have some substance and significance in influencing future judgments in the courts—taking into account, of course, the separation of powers.

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Today’s debate is almost a waste of time. It will be looked on as an embarrassment to the House. If we want to improve the standing of MPs and the Houses of Parliament within our community, this is not the route we should be pursuing. I therefore want nothing to do with this motion. I want my position recorded very clearly. I oppose the motion and I wish to get back to a process of legislating whereby every Member feels fully involved—and involved in a process that is serious and significant, not trite as in this instance.

6.7 pm

Mr Dominic Raab (Esher and Walton) (Con): It is a pleasure to follow the hon. Member for Hayes and Harlington (John McDonnell), although, unlike him, I welcome this debate and the serious way in which Ministers have identified and targeted the issue of article 8 undermining deportation, especially in relation to foreign national criminals, but also, increasingly, in relation to other elements of our immigration controls. It is worth putting the specific problem of article 8 into perspective. The European convention on human rights was never intended to have any extra-territorial application at all. It was certainly not intended to fetter deportation in any way. That much is very clear from the travaux préparatoires of the convention, all of which are in the public domain.

All of the restrictions have arisen through judicial legislation. Judges in Strasbourg and the UK have stretched existing rights to restrict our capacity to deport. That is contrary to both the separation of powers and basic democratic accountability. It is a serious constitutional matter. It is for elected Members of this House, not unaccountable judges, to decide whether British human rights need to be upgraded from the ones we signed up to in 1950. I should say that, for my part, as a matter of principle and as an elected representative, I support upholding the absolute prohibition on torture. Some will disagree, but I think it is wrong to deport anyone into the arms of a torturing state. On the question of what the right balance might be in terms of deportation and human rights, however, it must be for elected law-makers to decide whether we are going to raise the bar. Politicians can, perfectly respectably, disagree on where the bar should be set, but democrats cannot disagree that it is for legislators to strike that balance.

The fact is that the European Court of Human Rights has been legislating since the 1970s. In the notorious Chahal case in 1996 it was decided that Governments could not deport terrorist suspects if there was a substantial risk of torture in the country to which they were to be returned, but Strasbourg has gone much further. We see new fetters placed on deportation, most recently in the Abu Qatada case. The House will recall that Qatada’s deportation was barred by Strasbourg not because he faced the risk of torture—that was rejected—but because he might not get a fair trial in Jordan. That is a very dangerous precedent. It cannot be Britain’s responsibility to ensure that the justice systems of the world meet British or European standards. Again, it is not for Strasbourg to expand the fetters on deportation through judicial legislation.

Jeremy Corbyn: Surely the hon. Gentleman is rather overreaching himself here. This country signed the UN convention against torture, as one of many countries

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that did so, and it therefore specifically becomes part of UK law and there is precedent for that. So deporting somebody to a regime that does not accept the convention against torture and therefore might torture them would be illegal under UK law, leaving aside what might happen to them when they were sent back.

Mr Raab: I thank the hon. Gentleman for his intervention, but he made so many leaps of legal logic that I could not possibly follow them all. The fact is that Strasbourg’s application of a bar on deportation when the individual is at risk of not having a fair trial in their home country is not set out in the UN convention against torture and is not in the European convention on human rights; this is something that Strasbourg, of its own whim, created. The number of appeals by Qatada, at home and in Strasbourg, makes a mockery of the rule of law.

That said, by far the biggest problem we face on deportation arises as a result of the new restrictions under article 8 and the right to family life. If we are being honest, we cannot blame that on Strasbourg, because these are home-grown restrictions; they are a direct result of judicial legislation by UK courts under the previous Government’s Human Rights Act, beyond even the high tide of judicial legislation in case law that has come from Strasbourg. As a result of the Immigration Minister’s direction, the Home Office has produced data showing that 400 foreign criminals a year defeat deportation orders on article 8 grounds. That represents 61% of all successful challenges to deportation orders and this is by far the biggest category.

These cases are not just statistics; they involve real lives. Many shocking cases have been reported in the news, and I wish to refer to just one, that of my constituent Bishal Gurung, a waiter from Esher who was brutally killed by a gang, with his body dumped mercilessly in the river Thames. The perpetrator was convicted of manslaughter and later released. He frustrated his deportation order by citing his right to family life. Let me make it clear: he had no wife, no children and no dependants, yet still he claimed that his family ties trumped the public interest in his deportation. The House can imagine how Bishal Gurung’s family felt about that, and we can imagine what they feel it says about British justice. Now I can at least tell them that the Government and the House of Commons are trying to tackle the problem and reform the law.

Mr Denis MacShane (Rotherham) (Lab): We all encounter cases where members of constituents’ families have suffered as a result of the most brutal crimes and wish the most terrible justice to be placed on those who committed the crimes—if they are British, they of course stay in our courts and within our country. What I am worried about is: what happened to the principle of not visiting the sins of the father on the child? In the case the hon. Gentleman cites there was no family, but in many cases these men have married British women and have sired British children. Do those children and those wives have no right to have a life, after the sentence has expired, with their father and with their husband?

Mr Raab: The right hon. Gentleman makes a very important point. He crystallises things cogently, but in this case there were no dependants, so what he says does

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not apply. This is an interesting case. There are many examples where someone has committed a vicious, violent crime—it might be murder or, as in some cases, a sexual offence—has had a child in the meantime and has coerced members of the family, putting them under duress, so that they give evidence, which this person has then relied on to stay in this country. I challenge the view that it is always in the best interests of a child to be with a father of such character and background, but it is very difficult for a court to make that determination when they have evidence in front of them.

I shall discuss one case, which is the most skewed and perverse that I have come across. There are reporting restrictions on it, so I shall be careful about talking about some of the details. It involves an individual raping his partner and then claiming that relationship as part of the family life that he relied on to stay in this country. Many people would regard that as both legally unsustainable and morally perverse.

This is not just about the deportation of foreign criminals; it is about the shifting goalposts of article 8. It is very important to understand that the state of the law now—that static snapshot—is not the sole issue; it reflects years of development. My worry is about the direction in which things are headed. I worry that it will be increasingly impossible to apply border controls, be they in relation to the deportation of foreign national criminals or to other aspects of coalition policy, including cracking down on things such as forced marriage, increasing language requirements or dealing with sham student visas and bogus colleges. All those things will come later because the goalposts will keep shifting. That is a real danger for this Government and for future Governments.

Mr Cash: In his excellent, extremely well researched and powerful speech, my hon. Friend has not yet referred to the manner in which section 6 of the Human Rights Act 1998 impinges on this question. When I was shadow Attorney-General and I invoked our party to repeal the Human Rights Act as part of our policy, it became the policy up to and including the general election. Does he agree that nothing will stop the courts striking down immigration rules as a disproportionate violation of article 8 if they decide to do so?

Mr Raab: I thank my hon. Friend for his intervention. If he is patient, he will find that I will come on to deal with exactly that point, but I wish to avoid duplication at this moment.

I shall now deal with the points made by the shadow Home Secretary. She clearly knows little of the history of this problem or has conveniently forgotten it, so let me remind the House that this problem has been created by the Human Rights Act that her Government introduced. In fairness, there is an additional element to this, because the previous Prime Minister at least recognised that there was a problem. The House may recall his barnstorming 2007 conference speech in Bournemouth. His biggest cheer came when he vowed, all misty eyed, that

“any newcomer to Britain who is caught selling drugs or using guns will be thrown out. No-one who sells drugs to our children or uses guns has the right to stay in our country.”

As a result, we got changes, including the UK Borders Act 2007, to which the shadow Home Secretary referred.

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Section 32 of that Act deals with the deportation of foreign national criminals—so far, so good. However, by including an express reference to the Human Rights Act in section 33—something that was totally unnecessary and a matter of political choice—the previous Prime Minister, far from strengthening our capacity to deport, fatally weakened our capacity to deport. Ultimately—this is the point that my hon. Friend the Member for Stone (Mr Cash) is making—primary legislation trumps the Human Rights Act, but not if that Act is expressly written into the relevant statute. That may sound like a technical point, but it is crucial to understanding what went wrong with the 2007 Act. The former Prime Minister emasculated his own deportation law, and that speaks volumes about the expediency with which Labour has approached this debate. I believe that the shadow Home Secretary will be a bit less pious about this issue and will perhaps eat a little more humble pie before the House—I am sure that the shadow Immigration Minister will do so.


We live in hope.

I welcome the changes and the motion, but there are questions about whether the changes to the guidance and a mere resolution of this House can deliver the reform we need. I put that precise question to the Lord Chief Justice in November, when he appeared before the Joint Committee on Human Rights. He made it clear that without primary legislation the courts would probably not rein in the expansion and application of article 8 in deportation cases. So I would be grateful if the Minister said what the Government will do if these changes are not fully effective, as at least Government Members hope they will be. Does he agree that if we cannot stop the rot, we will need a new UK borders Act to deal with this issue clearly, categorically, once and for all? It is vital that we can measure the success of the proposed changes we are debating today. Will he ensure that the Home Office now records the number of deportation cases frustrated on human rights grounds, with a breakdown in respect of articles 3, 6 and 8—the main offenders—so that we can measure, see and scrutinise whether this problem gets better or worse as a result of the changes being introduced? The Home Office has not routinely recorded those data. The Immigration Minister went out of his way to ensure that it produced a single quarterly snapshot in 2011—I welcome that and commend him for it—but can he reassure us that that information will be routinely recorded from now on?

Human rights reform is contentious and it needs to take place on three levels: reform of the Strasbourg court; replacement of the Human Rights Act with a British Bill of Rights; and UK legislation to strengthen our border controls.

For my part—others might feel differently—I recognise that our coalition partners are sensitive about the Human Rights Act. I accept that we are unlikely to see the reform that I would like to see in this Parliament and I have already made clear my commitment to the absolute prohibition on torture. I cannot understand, however, why anyone except the lawyers, non-governmental organisations and academics who have made an industry out of human rights would die in a ditch to stop the deportation of serious criminals because it might disrupt their family, social or private ties. To me, as I have said, that suggests a skewed moral compass, not just legal chaos for our border controls.

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The changes we need require primary legislation, but we do not have to touch the Human Rights Act to solve this specific problem. It can be done by statutory amendment. I hope that the proposals before us today will tackle the problem—they have my full support—but, if they do not, I hope that all parties will agree to consider very seriously the case for amending the UK Borders Act. We need to draw a line in the sand, to restore democratic control over the criteria for deportation, to stop the ever-expanding list of legal excuses used by some of the worst criminals to stay in this country, to protect the public and, above all, to restore their confidence in British justice. We will do that only by injecting a healthy dose of common sense back into the increasingly perverse application of our human rights law.

6.21 pm

Pete Wishart (Perth and North Perthshire) (SNP): Sometimes, I do not know why we bother. We all turn up for these debates. All those who take an interest in home affairs and issues such as human rights are here, and you are here in your finery, Mr Deputy Speaker. We have heard a very confused speech from the Conservative Secretary of State and we have heard from Labour Members, ever compliant on human rights and home affairs. We have not heard from the Liberals; I do not know whether we will, but I would be interested to hear what they have to say. We are all here, but we are all more or less wasting our time. Why not just get on with it and get TheDaily Telegraph, along with the Daily Mail, to conduct our immigration policy? That is what we are getting, with immigration rules that are practically out of The Daily Telegraph’s leader column.

What an absolute farce this afternoon has been. What on earth are we debating? I do not have a clue. We have had three different explanations from the Government about what we are being asked to consider. We are asked to consider that article 8 is a qualified right. Yes, that is a restatement of the bleeding obvious, as I said earlier, and we all know that. We are then asked to support the Government’s immigration rules. Does that mean the immigration rules in their totality, as the Home Secretary said when I intervened, or part of them? Or are we just giving a direction to the judges? I have absolutely no clue whatsoever what we are being asked to consider this evening. It is a total waste of time and a farce. As the hon. Member for Hayes and Harlington (John McDonnell) says, we need a proper process to consider this very important subject—and it is important.

Mr Cash rose

Pete Wishart: I will give way, but I know exactly what is coming.

Mr Cash: The motion simply reads

“those contained in the Immigration Rules.”

It does not state which immigration rules. Indeed, they might change, as we expect that they will, from those proposed on 13 June.

Pete Wishart: I do not know whether the hon. Gentleman is being helpful, but that seems to be another interpretation. When he sums up, the Minister for Immigration must tell us exactly what we are voting on this evening, because I do not know. I cannot support the immigration

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rules in their totality, so if the Government are saying that we have to accept them tonight, I unfortunately cannot support them and will press the matter to a Division. We cannot accept the rules as they stand. This is a very important debate condensed to four hours and a lot of nonsense.

Jeremy Corbyn: Like the hon. Gentleman, I am confused by much of the debate. Would his interpretation be that whatever the outcome of the rather odd motion the Home Secretary has tabled, it cannot by any stretch of the imagination be construed as an approval of the rules, a direction to courts or as anything other than a vague statement from the Home Secretary of whatever she happens to believe in today?

Pete Wishart: The hon. Gentleman might be right—I do not know. We need to hear from the Government exactly what we are voting on. The Home Secretary made three different attempts to tell the House what we will be voting on tonight, but we are no clearer. At some point, we will need to hear from the Government exactly what they are asking us to support. If they want us to support the full rules, I cannot do that. It is a Conservative assault on article 8 and I will not be able to support it this evening.

We need a considered debate on immigration. Hon. Members who have spoken are absolutely right that the matter concerns our constituents, but in Scotland we do not share the Daily Telegraph, Daily Mail, right-wing Tory view of immigration. Scotland consistently sees these issues differently. Scotland’s population is at an all-time high, but only a few years ago we had great concerns that it was going to fall below the iconic 5 million mark for the first time since the 20th century. That was a real and absolute concern that has been addressed by immigration. We see immigration as something that is valuable to our communities and that is there to be cherished, grown and developed. The minute people set foot in our nation, they are new Scots. They are integrated from day one and that is why we do not have such problems.

Mark Reckless (Rochester and Strood) (Con): Will the hon. Gentleman therefore confirm whether, were Scotland to become independent, it would have its own independent border service?

Pete Wishart: You betcha. We have been observing what has been happening in the UK Border Agency and it is a textbook guide of how not to do to it. It is a nonsensical agency; it is dysfunctional and gets things absolutely wrong. I look forward to the day when we exercise control over our own immigration policies, so that we can have policies that are designed for and suited to our demography, our economy and our population. Right now, our population is at an all-time high because of immigration and we see that as good and positive.

Mark Reckless: Just to clarify, is the hon. Gentleman presuming that an independent Scotland would be part of a common travel area in the way that the Republic of Ireland is? If so, can he be certain of that—

Mr Deputy Speaker (Mr Nigel Evans): Order. We are straying way off the matter under consideration.

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Pete Wishart: Thank you, Mr Deputy Speaker.

We are here today to consider changes to article 8 of the European convention on human rights, which will effectively define the basis on which people can enter or remain in the UK based on their right to a family life. The motion is a revelation, almost declaring that article 8 is not an absolute right and that it is therefore okay to interpret it in any way that the Government want and for them to give guidance to that effect.

The Government are determined to have their way with the judiciary and to tell it how to interpret these provisions. Why bother even having a judge? Why cannot the Home Secretary and the Minister for Immigration do it themselves? We will have an end to judges performing the delicate balancing exercise they carry out every day in these tribunals and courts will now be dictated by the Secretary of State.

The Home Secretary has set herself quite an ambitious deadline. She has pledged by the end of the summer to end the abuse of the right to a family life by people who should not be here. She has been egged on by the “end the human rights” brigade, whom we see every day in the right-wing press, on the Conservative Back Benches and on the Labour Front Benches. They paint an extraordinary picture of our inner cities, inhabited by marauding foreign national murderers who in the evenings go home to their luxury penthouse flats, probably paid for by benefits and taxpayers’ money, and spend time on the phone to any one of the lavish lawyers who invent any kind of bizarre excuse to show that they have the right to a family life in the UK. That is the picture painted and the pretext behind the assault on article 8 that we are seeing today, and it is all utter nonsense.

Do you know the reality of the question of the right to a family life, Mr Deputy Speaker? Let me tell you. It is not about the marauding foreign nationals about whom we hear every day from the Conservative party. It is about the people whom we see in our constituency surgeries every day when we deal with their cases, who are separated from their families because of the inflexible rules and their rigid application of those rules by the UKBA.

Mr Tom Harris (Glasgow South) (Lab): I am sorry to interrupt the hon. Gentleman’s rant, but can he explain whether he shares the general feeling of repulsion held by most Members of the House about the example of the failed asylum seeker who was responsible for the death of a 12-year-old girl, left the scene of that crime and used his right to a family life to remain in the country? It is of course a small example, but does he understand why we feel such revulsion? Does he understand why ordinary people feel revulsion? Does he accept that one does not have to be a Daily Telegraph or Daily Mail reader to be revolted by that example?

Pete Wishart: I am grateful to the hon. Gentleman for giving me the opportunity to say absolutely that such people have no place in our country and should be dealt with efficiently and effectively, but article 8 allows the judiciary to do that. What the Government want to do is dictate to judges exactly how they should interpret these cases. I am all for getting rid of all the murderous, mayhem-causing foreign nationals we hear about every day—it is absolutely right that we do that—but let us talk about what actually happens on the ground in our constituency offices and the day-to-day routine cases.

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There is a fantastic case in Scotland just now concerning a man called Gary Boyd, who is the deputy head teacher at Kirkwall grammar school in Orkney. He has just returned to his native Scotland after an absence of five years with his Australian wife of nine years. She is having to return to Australia with her eldest son to reapply to come back into the UK because of the way in which the rules have been interpreted by the UKBA, with no flexibility but total rigidity. She had indefinite leave to remain and was out of the country for a long time and did not know that she had to reapply to stay here. She is now off to Australia. What that means—we are talking about the right to family life—is that she will be separated from her husband for six months. Their eldest son is supposed to be sitting his O-levels next year, but he does not know whether he will now be sitting them because of having to go to Australia, and we do not know whether their youngest daughter will be able to start nursery education at the end of the year. This is the reality of the right to a family life and these are the things we should be considering—the rigid rules being applied by the UKBA.

Mr Tom Harris: I am sorry to interrupt the hon. Gentleman again but the example he has just cited has absolutely no relevance to the motion before the House. We are talking about deportation cases, but he is not talking about deportation. He is talking about a couple who did not obey the rules that are applied to every single other person in the country. Will he admit that he is not talking about a deportation case?

Pete Wishart: I am grateful to the hon. Gentleman once again because he gives me another opportunity to restate that this is the reality—the things that we have to deal with in our constituency offices day in, day out. Yes, we see the headlines in The Daily Telegraph and yes we are appalled by the actions of some foreign nationals. Yes, such people should be deported, but if we are discussing, as we are this afternoon, the right to a family life, this is the reality—the stuff we deal with day in, day out. That is the stuff that needs the real attention.

Who can forget where all this started? It was the hilarious speech by the Home Secretary at the Conservative party conference when she—I am not making this up—cited the example of a Bolivian man who was allowed to remain in the country because he owned a cat. Of course, the Home Secretary is never one to unleash the cat among the pigeons. That ridiculous story had the Justice Secretary twitching in his Hush Puppies. He said at the time that he was willing to bet it was not true, and he was absolutely right because the Home Secretary’s story unravelled faster than a condemned pasty shortly after her speech.

Mr Raab: Has the hon. Gentleman read the case to which he is referring? I do not think he can have because the cat was a relevant factor—not the decisive factor but a material one—in the relationship between the boyfriend and the girlfriend, which was relied on in this case. Has the hon. Gentleman read the case?

Pete Wishart: I am grateful to the hon. Gentleman. I have been following his campaign with great interest, but I think he has ruined it totally with that intervention.

Mr Raab: Has the hon. Gentleman read the case?

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Pete Wishart: Of course I have read the case. The hon. Gentleman has ruined his campaign totally. He has conducted a great campaign in some ways, because it has attracted a lot of attention, and good luck to him because he has managed to secure all these fantastic column inches in all the right-wing newspapers, but he has done himself no justice with that intervention.

When the Home Secretary made her statement the other day, I asked her about these other rules that we now have to consider, which I believe we are now being asked to support. They include the measure that a family has to come up with a minimum income guarantee of £18,600. In the statement, I asked the Home Secretary why there is a flat rate across the whole United Kingdom and why there are not different rates to reflect the different incomes in other parts of the UK. In Dundee, there is a different standard of living than in London docklands—that just makes sense. She said that it would not be possible to impose different rates across the UK. What absolute rubbish. That happens in Australia. The Australians have different immigration rules for different states and they seem to get along perfectly well. All we would need to do is license people. If there was an agreement for someone to come to one part of the UK, they would have to stay in that part or lose their right to stay here and be arrested and deported. That is simple, straightforward and could easily have been done, but the Home Secretary decided that was not for us, and now everyone across the UK has to have at least £18,600.

Even if that sum is secured, the partner is now likely to be stuck in the purgatory of a probation period of five years rather than the current two. If one is foolish enough to have children, the required income level rises substantially. We are told that this is to prevent migrants from sponging off the state, but Government statistics show that foreign-born people are less than half as likely to claim benefits as those who were born here. The measures will force families to choose between staying apart or moving abroad.

The Home Secretary ridiculously says that these immigration policies are not about numbers, but if they are not, why have the Government imposed the arbitrary cap that is already doing such damage to our universities, colleges and one of the few sectors of our economy that is actually booming?

The Minister for Immigration (Damian Green): I think the hon. Gentleman is very confused. He is talking about a cap on universities but there is no cap on student numbers in this country. There is a cap on work visas, which is nothing to do with universities.

Pete Wishart: I am grateful to the Minister. He has received representations from countless educational institutions right across Scotland that have told him again and again about the damage that his immigration policies are doing to our university and college sector. I wish that he and the Home Secretary would respond positively and do the right thing for our universities and colleges, which are suffering in Scotland because of these Tory immigration policies.

This is such a Tory solution. There is one rule for the rich immigrant and another for the poor, forcing an estimated 15,000 families a year to emigrate or live

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apart. That is heartless and it gives the lie to the Tories’ manifesto claims to support what in their words is society’s building block—the family.

We will not do things this way and we look forward to getting the levers of immigration. We have observed what has happened down here and it does not work. We have seen the chaos of the UKBA and we will not do the same. We will make sure that Scotland is a welcoming, accommodating place when we have the levers of immigration at our disposal. I was at one of our national conferences at the weekend and I listened, consecutively, to an Italian Scot, an Asian Scot and a Frenchman who declared himself a new Scot and a European. Such people all contribute to the Scottish economy and to our community and culture. They have enriched Scotland. When we secure the full levers of immigration we will design a system that will attract the best and the brightest and we will address our demographic and population concerns. I cannot wait for that day when we will get rid of the Daily Telegraph, Daily Mail right-wing Tory nonsense determining our immigration policy here.

6.37 pm

Priti Patel (Witham) (Con): I was interested to hear the contribution of the hon. Member for Perth and North Perthshire (Pete Wishart), and particularly his analysis of immigration and what Scotland might look like under his vision of immigration.

It will come as no surprise to the House that I, as a British Asian, follow all things immigration with a degree of interest. I not only welcome this debate but applaud the Secretary of State’s statement to the House last week and congratulate the Government on bringing forward this motion on the application of article 8. I say that in relation to everything the motion is promoting.

For too long our immigration system has, as my hon. Friend the Member for Esher and Walton (Mr Raab) highlighted, been left open to interpretation, abuse and the failures of the previous Government to address many issues. Here we are addressing the issue of foreign national offenders and lawyers using human rights as an excuse—the wrong kind of excuse—to cause a range of problems and undermine public confidence in this country’s immigration and criminal justice policies. As has been mentioned, not only did the previous Government fail to address many of the problems that have been touched on today, but their inaction made the situation far worse, which makes the challenge faced by this Government even greater.

Few things have been more damaging to public confidence or caused as much division as what has been perceived as the open-border policy pursued by Labour, which left our borders subject to the consequences of uncontrollable immigration. This is no doubt why, throughout my time as a Member of Parliament, short though it has been thus far, and before then as a candidate, immigration has been one of the most pressing concerns in my constituency when I have been out knocking on doors. Instead of feeling safe and protected by a system that manages immigration responsibly, my constituents have little or no confidence in our ability to protect our borders. It falls upon the shoulders of this Government to redress that balance now, as they are doing.

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My constituents are left astounded, shocked and appalled by judgments made under article 8 or other human rights laws that have allowed foreign criminals to walk our streets and commit crimes. We have already heard about some of those crimes this afternoon. My constituents know full well that the immigration and the legal systems defy common sense when criminals such as Mohammed Ibrahim are able callously to kill a young girl and then rely on human rights laws and claim a right to a family life to avoid being deported.

On top of that, the European Court of Human Rights has been blocking us from deporting Abu Qatada. We have had the issue of prisoner votes in this country. All this highlights how powerless Parliament has become when faced with the onslaught of human rights case law. What these decisions by immigration tribunals and judges do is demonstrate that the human rights laws that they are following alongside case law value the rights of criminals over the rights of the law-abiding majority and the victims of crime. They also undermine the entire immigration system, including those who come to this country who are self-sufficient, want to be British, want to contribute to our economy and, importantly, want to abide by this country’s laws.

It is therefore absolutely right that the Government pursue the changes not only to rebalance the immigration system, but to prevent these outrageous and appalling abuses from happening in the future. It is fundamentally important to our democracy that Parliament is able to hold the courts to account and lay down guidance and rules for them to follow. I urge Ministers to press ahead, regardless of some of the hollow criticism that we have heard, because the public expect the Government to act on such issues, to put in place proper controls on immigration and to put an end to the appalling way in which human rights laws have been subject to interpretation.

The Home Secretary rightly said this afternoon that coming to Britain to live and settle is a privilege. When foreign nationals break our laws, show scant regard for our way of life and put the law-abiding majority at risk, they should expect to be deported. They have wilfully chosen to offend, and in those circumstances they have chosen to forfeit their entitlement to remain in this country. The Home Secretary can be assured of my support and the support of my constituents as she presses ahead with these important reforms. This is a positive and welcome motion, but on the wider issues of immigration and deportation, I would like to see further steps. The public expect more proactive steps forward.

We have heard about the 5,000-plus foreign national offenders who were deported last year, but 11,000 remain in our prisons. Under the present rules it is almost impossible to deport some of the 4,000 who are of European origin. I would like to see the motion taken further, although that is not the subject of the debate today. In a future system foreign prisoners who need to be deported should go straight from jail to a plane. That would go a long way in reassuring our constituents and increasing confidence in the system.

I support the motion and hope that it will be the first of a number of positive measures to bring power and decision making back to this Parliament so that we can regain control of our borders and regain public confidence when it comes to human rights issues in this country.

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6.44 pm

Mr Tom Harris (Glasgow South) (Lab): I begin by offering support to my hon. Friend the Member for Hayes and Harlington (John McDonnell), who is resuming his place in the Chamber. He is right to express concern about the purpose of the debate and the purpose of the motion on the Order Paper. I have a lot of time for the Immigration Minister, and I know that he will have taken those comments seriously. I expect that in his summing up, he will want to explain to the House why we are here today and what precedent he expects the motion to set—or what precedent has already been set at some time in the past that leads him to believe that the discussion of the motion will have a substantial effect on the decisions of judges in the future.

Before I continue my remarks, I should like to comment on the contribution from the hon. Member for Perth and North Perthshire (Pete Wishart). It was a misjudged contribution. He repeatedly referred disparagingly to right-wing papers such as The Daily Telegraph and the Daily Mail. Actually, there is a troika of right-wing newspapers. Everyone knows that they are TheTelegraph,TheMail and The Sun, but the hon. Gentleman did not mention The Sun or any News International newspapers. I cannot think why. Apparently the right-wing press is now limited to The Daily Telegraph and the Daily Mail.

The hon. Gentleman also showed utter contempt for the citizens of England by suggesting that Scots, unlike the English, are welcoming of immigrants, and that every immigrant to Scotland is integrated into Scottish life as of day one—I think that was the expression that he used. Naturally, he is entirely wrong. Scots, like citizens in the rest of our country, are tolerant and welcoming, but like those in the rest of the country, we value fairness. Support for immigration in Scotland does not extend to support for open-door immigration of the kind proposed by the Scottish National party.

Pete Wishart: I do not know whether the hon. Gentleman has had a chance to look at the Scottish Social Attitudes survey that was carried out in the past year. If he has had a look at it, what does he make of it?

Mr Harris: I can tell the hon. Gentleman that, unlike him, I speak to constituents all the time, and I know that my constituents have exactly the same view as citizens throughout the United Kingdom. They want to welcome asylum seekers, they want to welcome immigrant communities, but they want a sense of fair play that applies equally across the border. Scots are no more or less tolerant of foreign-born criminals remaining in the UK than are our fellow citizens unfortunate enough to live south of the border.

Now that the hon. Gentleman has had a chance to calm down and get his breath back, I would like to ask him whether, if Scots throughout the country are some sort of homogenous entity, all thinking the same thing, he can explain why the only local authority in Scotland that applied to welcome asylum seekers was Labour-controlled Glasgow—not Perth, not Edinburgh, not another local authority anywhere in Scotland, just Glasgow?

As has already been highlighted, the deportation of foreign criminals is more often frustrated by bureaucratic process than by appeals under article 8 of the Human Rights Act. My concern today is that some Members of

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the House and many members of the media—yes, the right-wing media—are using the relatively small number of appeals under this part of the Act to make the case for the Act’s repeal. That would be unacceptable. It is important that the debate focuses on the reasons behind the failure of the Government—and, yes, the failure of previous Governments—rather than on the straw man of the Human Rights Act.

Nevertheless, it is a concern to all our constituents when someone who has enjoyed British hospitality, and who has chosen to repay that hospitality with contempt for our law is allowed to remain in the UK. My understanding—perhaps the Immigration Minister will be able to clarify this in his summing up—is that the interpretation of article 8 as representing an absolute right to a family life is a peculiarly British interpretation. My understanding is that other judiciaries operating elsewhere in the EU under the European convention on human rights attach a significantly different interpretation to article 8—one that more frequently allows the deportation of foreign criminals.

The Government’s own policy on the circumstances in which deportation would not be appropriate—for example, if the person had lived here under valid terms for at least 15 years—deserves some attention.

My right hon. Friend the Member for Blackburn (Mr Straw) has already referred to the shocking case of Aso Mohammed Ibrahim, who in 2003 was responsible for the death of 12-year-old Amy Houston in a hit-and-run incident in Lancashire. Mr Ibrahim is variously described as an asylum seeker, a failed asylum seeker and an illegal immigrant. In fact, only the last term is correct. He arrived in the UK in 2001 and was refused refugee status, so he was never—not for one second—a refugee, and his appeal rights were exhausted by the end of 2002.

It is not the Human Rights Act that is to blame for the fact that too many criminals are allowed to remain here; it is the failure of the UK Border Agency to remove illegal immigrants in far greater numbers, and that should concern the House. Of course I accept the point made by my right hon. Friend the Member for Blackburn, who is a former Home Secretary, which is that on many occasions we simply cannot return people to their country of origin because it would not be safe to do so.

However, I have come across many constituents who have been in the country for eight or 10 years, applied for asylum and had the application refused, but who regard the refusal simply as an indication that no decision on their case has yet been made. They are wrong. They have been given the decision on their case: they have been told that they are in the country illegally and so should remove themselves. Far too often we allow time to march on and they do not make arrangements to remove themselves, but the UK Border Agency should remove them forcibly—I know that that process costs a lot—if they are not prepared to remove themselves voluntarily. I should point out that, although this debate has been billed as being about the scandal of permitting criminals to remain in the UK, the motion rightly refers only to migrants, not criminals.

I welcome the Government’s statement that one of the exceptions to the presumption that an individual will be deported is where an individual has been resident in the UK legally for 15 years. I hope that the Minister, in summing up, can confirm that the many thousands

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of individuals who have remained here illegally, ignoring decisions to refuse them refugee status, will not qualify under that exception as they have not been in the country legally. That issue is as pertinent to the cases of law-abiding immigrants as it is to criminals, and article 8 has been used to confirm the residency in the UK of many who have no criminal past and who are of less interest to the right-wing tabloids.

Countries across the whole UK are relocating, but our hospitality is sorely tested when people who come here either to seek refuge or to build a better life for themselves repay it by exhibiting contempt for our rules and, by implication, contempt for our citizens. Whether they have broken the law through an appallingly violent and callous act, as in the case of young Amy Houston, or by ignoring an appeal ruling that they have no right to remain here, the right to a family life cannot be absolute. The Government are right to say so. However, they are merely reflecting what the whole country already believes.

Yvette Cooper: On a point of order, Mr Deputy Speaker. The Home Secretary did not properly clarify earlier whether this motion is separate from the normal and proper debates on the different immigration rules. The Clerk of the Journals has now provided some clarification and reassurance that these are in fact separate. He has advised:

“The effectiveness of the statutory disapproval procedure for any particular Statement of Changes in the Immigration Rules laid before Parliament is a matter of law, which cannot be altered or over-ridden by any Resolution of the House of Commons.”

Will you confirm that that is indeed the case, because I think that would provide the House with important clarification and allow it to deliver a clearer message?

Mr Deputy Speaker (Mr Nigel Evans): I thank the right hon. Lady for notice of her point of order. The legal effect of the resolution is not a matter for the Chair; it is a matter for the courts. But I can confirm that, as a matter of procedure, agreeing the motion would not prevent the tabling of any motion to disapprove a Statement of Changes in the Immigration Rules as provided by statute.

6.54 pm

Mr Geoffrey Cox (Torridge and West Devon) (Con): I had not intended to speak, but a number of matters have been raised on which, it seems to me, some light might be thrown. The hon. Members for Perth and North Perthshire (Pete Wishart) and for Hayes and Harlington (John McDonnell) both questioned the effect of what we are doing, and it is on that point that I hope to shed some light.

This is a limited, practical measure, and one that I support, but I do not hold out an enormous degree of hope that it will have a substantive effect on the exercise of the courts’ discretion. Section 3 of the Immigration Act 1971 provides that the Home Secretary can amend the immigration rules, and it provides for the procedure, by way of negative resolution, by which those rules can be challenged. If they are challenged, the Act requires the Home Secretary simply to consider the points that have been made on the resolution that has disapproved them and alter, as she sees fit, the executive administrative guidance that those rules contain. Today, an attempt is

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being made to give some democratic force to the alteration of the immigration rules, which the Home Secretary could otherwise have done simply by an Executive act, in the hope that it will communicate to the courts the fact that there has been some consideration by Parliament.

I take the view that that might well have some effect on the courts beyond the fact that they will attach a degree of weight to the Home Secretary’s opinion in any event. It is well established in the human rights jurisprudence that a decision maturely taken by the Executive—in this case a Secretary of State who has a wide range of advice available to her and who can consult experts in the field—to change the existing immigration rules would already be accorded a degree of weight by the courts when they are considering what is a proportionate decision in the application of a specific human right. What the Home Secretary is doing today, which, I submit, the House should applaud, is giving the House an opportunity to voice its opinion on the changes she has decided to make.

Chris Bryant (Rhondda) (Lab): The key point, as I think the Clerks have already made clear, is that we are not deciding on the totality of the changes; we are deciding only on the basis of what is in the motion being debated today. I would not want the hon. and learned Gentleman to conflate the two by mistake.

Mr Cox: The courts are more than capable of appreciating that what we are dealing with here is not primary legislation. Primary legislation will be accorded a much greater degree of weight—some people use the word “deference”, but the courts have disapproved it—because there is usually a period of consultation, a Bill might have been scrutinised before it was even brought to the House and a wide range of interests will have been taken into account in the process of scrutiny. A court is more than able to distinguish between a piece of primary legislation and a motion such as the one before us and to see the scope that the motion considers. That is why I say that this process is likely to produce a degree—probably a very modest degree—of additional weight to be accorded to the Home Secretary’s discretion. Her discretion would normally be accorded a degree of weight by the courts, and the motion might add a little more to the changes to the immigration rules than they would already have been accorded.

It is not difficult to interpret what is being done here. It is perfectly valid. The courts will not be deceived or hoodwinked. They will see what we are doing. They will no doubt read, if they take the trouble to go that far down the pages of Hansard, the profoundly principled position that the hon. Member for Hayes and Harlington took when he held up his hands and, with a cry of horror, said, “Not with my assent.” But the reality is that the motion will lend some modest substance to the already substantial decision that the Executive and the Home Secretary have taken. She should be applauded for, and congratulated on, giving the hon. Member for Perth and North Perthshire the opportunity to mount that—one hon. Member described it as a “rant”; I should never be so impolite—extraordinary, eloquent and passionate diatribe, to which he treated the entire House from his position on the Opposition Benches, representing the Scottish National party.

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John McDonnell: Will the hon. and learned Gentleman give way?

Mr Cox: I will, given that I have mentioned the hon. Gentleman.

John McDonnell: If the hon. and learned Gentleman’s argument is that what we are doing today is virtually meaningless, I agree, but where does that fit with Pepper v. Hart, which we have always used as the guide to what influences a court’s decisions, and which defines very narrowly how a reference to Parliament—in other words, to a ministerial statement that gives guidance on existing legislation—can be made?

Mr Cox: May I say first that it is not my argument—and the hon. Gentleman knows it. It is a forensic point, which does not do his subtlety and sophistication justice, to suggest that I am saying that this is meaningless. On the contrary, I am saying that it has meaning but we must not overestimate the meaning that it has.

John McDonnell: So, virtually meaningless.

Mr Cox: No! It makes a useful and practical contribution and is a useful measure that, to the extent that the courts are able to perceive what has gone on here, will no doubt provide a useful added measure of weight to the Home Secretary’s discretion. As for Pepper v. Hart, that is concerned of course with primary legislation and the detailed interpretation of individual clauses.

All that is being done here is that the courts are being invited to take note that the motion before us is not simply the executive fiat of the Home Secretary, and that the Home Secretary has put it before Parliament—much the same would have applied if it had been challenged under the 40-day procedure—and a debate about it has been held. Indeed, the courts in the past have examined motions and resolutions of this House and pointed out that they were merely resolutions, but they have not ignored them, and that is exactly what I expect will happen in this situation.

So the motion is perfectly reasonable. It is a laudable attempt to give this House the opportunity to have its say, and if I may say so there was a degree of pedantry from Opposition Front Benchers, who stood on their moral high horse and said, “This should have been primary legislation.” Of course it should not; the immigration rules already have a statutory procedure for amendment, through the Home Secretary’s laying them before Parliament. That is how they are amended, so we ought to avoid the forensic froth of suggesting that this is not a useful and practical—albeit, I accept, limited—measure.

There is no doubt that the Executive have the right, supported by Parliament in whatever measure they ask Parliament to support them, to put to the courts a degree of guidance on the exercise of the courts’ undoubted discretion to decide what is proportionate. This is not an attempt to fetter the courts; it cannot be. As my hon. Friend the Member for Stone (Mr Cash) has so often said, the courts are “unfetterable”. They will not be fettered by this House, and rightly so. The courts must exercise an independent, individual judgment.

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There are other circumstances, however, in which the Executive seek to give guidance to the courts on what they consider proportionate in the circumstances. Let me give the House another example. The Home Secretary has a discretion to make an exclusion order against somebody outside this country whom it is not conducive to the public good to admit.

In—I think—2007 or 2008, what is called an acceptable behaviours policy was promulgated, setting out the general approach that a Home Secretary will take to what is a proportionate decision when people have made expressions that make them undesirable entrants to this country. That was done because, of course, article 10 on freedom of expression can be invoked, and the acceptable behaviours policy provides a broad framework for the discretion that the Home Secretary is to exercise in deciding whether to admit such a person who is guilty of such statements.

The sentencing guidelines are not dissimilar. They are guidance to a court on how a discretion might be used, but they are not binding: they cannot fetter the independent and individual judgment of the court. So, in my view, what is being proposed here is not without precedent in other areas. It is a limited, practical measure, and it is one that the House should strongly support, because there is a widespread belief among the public—sometimes wrongly held, as the hon. Member for Perth and North Perthshire has said, and sometimes a caricature—that the Human Rights Act is a shield for all kinds of disgraceful behaviour. The motion before us will do something to restore public confidence in the decisions that the courts make, and will demonstrate that the Government and this House are conscious that a change needs to be made. What will that do? It will assist the courts in striking the right balance and in achieving a degree of consistency, and, in my respectful submission, that is a wholly laudable aim to which this House ought to give its support.

7.5 pm

Jeremy Corbyn (Islington North) (Lab): I am grateful to the hon. and learned Member for Torridge and West Devon (Mr Cox) for making a wonderful speech, trying to convince the House that we are actually doing something useful when the Clerk has just explained to us that we are not doing anything very useful whatever. We are deeply indebted to the hon. and learned Gentleman, and the courts are the stronger for the ability to make that kind of argument—to make something utterly irrelevant seem important. It is a skill and a talent that, sadly, only some of us are able to possess.

The Home Secretary probably tabled this rather strange motion because she assumed that it would be a useful bone to feed to her Back Benchers, who are obsessed with the Human Rights Act, with the European convention on human rights and, in some cases, with anything to do with Europe. They follow their obsession every day in The Daily Telegraph, Daily Mail and Daily Express. Some of them even read The Sun, I believe, and they continue with that obsession.

We should be slightly more careful than that, however, because the European convention on human rights was established in 1948 to look to a future in Europe based on human rights and a respect for people, rather than on the power of the state to oppress people. We had come

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out of the Nazi period, the most horrible period in European history, so the popular press, which consistently reports anything to do with human rights as a laughable matter, should remember that many people owe their very lives to the existence of that convention and the European Court of Human Rights, which have had a good effect on many other countries.

The Home Secretary may be saying that immigration law trumps the Human Rights Act and the European convention on human rights, but article 8 has always been qualified and no one has ever disputed that. What would she and others say if the Hungarian Government made a similar statement, announcing that it absolved them of any need to be taken to the European Court of Human Rights for their treatment of Roma people and Traveller people in Hungary? We should think a bit more deeply about the causes of human rights abuse throughout Europe, and be a bit more sympathetic to the European Court of Human Rights and the European convention on human rights.

I shall not speak for long, because others want to get in and the debate is time-limited, but the Home Secretary placed in the Vote Office last week an explanatory statement on her immigration proposals, and it ranges far wider than the question of just deporting foreign criminals. It skates over the important issue of how children and families are treated in the right to family life. She has chosen to interpret that right in the narrow sphere of the individual—usually male—criminal who has served a sentence, left prison, is hopefully a reformed character and then asserts that he has a right to family life in the UK, giving stern warnings that she will not accept any of that stuff any more and they are going to be on their way. She might care to look at what the London School of Economics did in considering the effects of article 8, and what others have done in this respect.

Baroness Hale has said that a child cannot be held responsible for the moral failings of their parents. That is a profound statement that emphasises that children do have rights in these situations. They have rights not to be deported, and their parents have rights to enjoy the company of their spouse or partner. Surely that is what we should be looking at. What is the effect on those children of one parent being removed? Some of us have been through the sad experience of arguing that case on behalf of constituents. One partner and their children do not want to be removed to another jurisdiction, so they remain here knowing full well that the missing partner—the ex-prisoner—will not be allowed into this country for at least 10 years. That is a huge proportion of a child’s life and experience. We should be slightly more liberal and understanding about these issues.

Obviously in some of the extreme cases, such as that cited by my right hon. Friend the Member for Blackburn (Mr Straw), one would have no sympathy with what those individuals have achieved, but looking at extreme cases does not make for good law. A serious examination of the totality makes for a better example of good law. That is why I suggested that we should refer the whole issue to the Joint Committee on Human Rights.