‘(1) This section applies when a court or tribunal is required to determine whether a decision made under the Immigration Acts in respect of a relevant person—

(a) breaches a person’s right to respect for private and family life under Article 8; and

(b) as a result would be unlawful under section 6 of the Human Rights Act 1998.

(2) In subsection (1) a “relevant person” is any person who, immediately before the commencement of Schedule 1, was—

(a) residing in the United Kingdom in accordance with the Immigration (European Economic Area) Regulations 2016;

(b) residing in the United Kingdom in accordance with a right conferred by or under any of the other amendments which is repealed by Schedule 1; or

(a) otherwise residing in the United Kingdom in accordance with any right derived from European Union law which continues, or immediately before the commencement of Schedule 1 continued, by virtue of section 4 of the European Union (Withdrawal) Act 2018 to be recognised and available in the United Kingdom.

(3) In a case to which this section applies, section 117C of the Nationality, Immigration and Asylum Act 2002 shall be read subject to the following modifications.

(4) Section 117C(5) shall be read as if the words “and the effect of C’s deportation on the partner or child would be unduly harsh” were replaced with “and either

(a) the effect of C’s deportation on the partner would be unduly harsh; or

(b) it would be unreasonable for the child to leave the UK or to remain in the UK without C.”

(5) Section 117C(6) shall be read as if—

(a) the word “(“C”)” were inserted after “foreign criminal”; and

(b) the words “there are very compelling circumstances, over and above those described in Exceptions 1 and 2” were replaced with “either

(c) C has a genuine and subsisting parental relationship with a qualifying child and it would be unreasonable for the child to leave the UK or to remain in the UK without C; or there are very compelling circumstances, over and above those described in Exceptions 1 and 2.’—

This new clause modifies the threshold for deportation of EEA nationals and family members who are parents of “qualifying children” – children who are British or have lived in the UK for 7 years or more.

Brought up, and read the First time.

I beg to move, That the clause be read a Second time.

With this it will be convenient to discuss

New clause 54—Family life—

‘(1) This section applies when a court or tribunal is required to determine whether a decision made under the Immigration Acts in respect of a relevant person—

(a) breaches a person’s right to respect for private and family life under Article 8, and

(b) as a result would be unlawful under section 6 of the Human Rights Act 1998.

(2) In subsection (1) a “relevant person” is any person who, immediately before the commencement of Schedule 1, was—

(a) residing in the United Kingdom in accordance with the Immigration (European Economic Area) Regulations 2016;

(b) residing in the United Kingdom in accordance with a right conferred by or under any of the other amendments which is repealed by Schedule 1; or

(c) otherwise residing in the United Kingdom in accordance with any right derived from European Union law which continues, or immediately before the commencement of Schedule 1 continued, by virtue of section 4 of the European Union (Withdrawal) Act 2018 to be recognised and available in the United Kingdom.

(3) In a case to which this section applies, section 117C of the Nationality, Immigration and Asylum Act 2002 shall be read subject to the following modifications.

(4) Subsection (4)(a) shall be read as if the words “C has been lawfully resident in the United Kingdom for most of C’s life” were omitted and replaced with “one of criteria (a) to (c) in subsection (4A) is satisfied”.

(5) Section 117C shall be read as if after subsection (4) there were inserted the following words—

“(4A) The criteria in this subsection are—

(a) that C has been lawfully resident in the United Kingdom for most of C’s life,

(b) that C was born in the UK, or

(c) that C arrived in the UK aged under 18 and has lived in the United Kingdom for a continuous period of seven years or more.

(4B) If the criterion in subsection (4A)(b) or the criterion in subsection (4A)(c) is satisfied, it shall be presumed that C is socially and culturally integrated in the UK for the purposes of subsection (4)(b).

(4C) A presumption under subsection (4B) is rebuttable.’

This new clause modifies the criteria for the deportation of third country nationals with very significant connections to the UK who are impacted by this Act.

I am optimistically—and perhaps naively—attempting to spark a sensible, measured and constructive debate on laws relating to deportation, and the balance and interaction with family and private life. It is my fault, but I think the headings on the new clauses should probably be the other way around. The one relating to family is more closely linked to private life and vice versa.

Of course, there are people who commit serious crimes and have no connection with the UK, and they must be deported without any real hesitation. However, there are also many other cases where the impact of any such decision has such serious consequences—not just for the individual, but for the family member—that deportation is not appropriate in the minds of most reasonable people. Once a person has completed the punishment provided for by our criminal laws, they resume their life in this country.

There is also a second category of case, where to all intents and purposes the Home Office is not deporting foreign national offenders. In reality, it is deporting British people—people who have lived pretty much all their lives here and have no connection with the place to which they are being deported, other than the passports that they have never used or used only once when they were toddlers. From time to time, we need to be brave enough to confront the question of where we draw the line. I make the case that the line has been drawn in the wrong place, and that powers of deportation are now used too often and in inappropriate circumstances. That is a challenge to MPs on both sides of the House, because much of our deportation legislation has been in place under Labour Administrations as well as Conservative Administrations.

I turn first to new clause 53, where other family members are affected. As hon. Members will be aware, those from EEA countries and Swiss nationals and their family members cannot generally be deported, except on grounds of public policy, public security and public health, and where their conduct poses a genuine, present and sufficiently serious threat to one of the fundamental interests of our society—a forward-looking assessment that allows for consideration of competing family life considerations. By contrast, people from outside the EEA are subject to automatic deportation if sentenced to imprisonment of 12 months or more. No consideration is given to whether a person continues to pose a risk, and those sentenced to less than 12 months can also be deported if the Secretary of State believes it to be conducive to the public good.

Consideration of matters relating to family has been seriously restricted. There are only two very narrow circumstances in which issues of family will trump deportation. A person must show that they have either a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and they must show that the experience of deportation for the partner or child would be unduly harsh. The test is even higher where there has been a sentence of four years or more, but where very compelling circumstances must be shown.

The new clause concerns children, and we argue that the test set out just now is unduly restrictive and not in the best interests of children. Instead of requiring unduly harsh circumstances, the new clause would stop deportation where it would be unreasonable for a child to leave the UK or to remain in the UK without the parent. It is important to appreciate just how demanding the current test is. Home Office policy states that the words “unduly harsh” must be given their ordinary meanings. It notes that the Oxford English Dictionary defines “unduly” as “excessively”, and “harsh” as “severe” or “cruel”. In short, Parliament has put in place a regime that allows for child cruelty; only where that child cruelty becomes excessive do we think again.

It is little wonder that judges have sometimes expressed great sympathy with appellants and surprise at the effect of the legislation that this place has enacted, but their hands are tied. As Lord Justice Baker remarked in the case of KF Nigeria:

“For those lawyers, like my Lord and myself, who have spent many years practising in the family jurisdiction, this is not a comfortable interpretation to apply. But that is what Parliament has decided.”

Two tribunals had found that KF should not be deported because of the significant impact it would have on his son, despite a three-year sentence for burglary and robbery. Being a parent does not exempt someone from facing the criminal justice system if they break the law, but deportation goes further; it can effectively and summarily end a child’s family life for at least the duration of their childhood. There are well-documented long-term negative impacts on a child’s upbringing, education and social behaviour, with repercussions for their communities. There are also, of course, implications for a partner left behind in the United Kingdom, who is now responsible for bringing up the child alone.

I am not submitting that parents can never be deported; I am submitting that we need to be much more careful and sensitive about the circumstances in which it happens. This is not about people escaping justice, because they will still face the criminal justice system; it is about protecting innocent children. Deportations would still be possible, even where a child was involved, but only where a court assesses that it would be reasonable for the child to leave the UK along with the parent, or for the child to remain in the UK without the parent.

I turn to new clause 54, which challenges the Government on the criteria used to decide on the deportation of people who have significant connections with the United Kingdom. The issue was summarised by the former prisons and probation ombudsman, Stephen Shaw, in his 2018 review of treatment of vulnerable adults in immigration detention, which was commissioned by the then Home Secretary, Mrs May. He reported that, time and again, those he met who were being held under immigration powers after serving custodial sentences were long-term British residents who had often been brought to the UK as young children and who were, to all intents and purposes, British.

To quote Stephen Shaw’s review:

“I find the policy of removing individuals brought up here from infancy to be deeply troubling. For low-risk offenders, it seems entirely disproportionate to tear them away from their lives, families and friends in the UK, and send them to countries where they may not speak the language or have any ties. For those who have committed serious crimes, there is also a further question of whether it is right to send high-risk offenders to another country when their offending follows an upbringing in the UK.”

It bears remembering that some of those individuals would have been entitled to British citizenship had they been aware, or not been priced out of it by the Home Office, to reference my earlier amendment on that subject.

I agree absolutely with Stephen Shaw, and I have personal experience of representing, very occasionally, clients who faced deportation. I remember in particular one Glaswegian lad—and he was Glaswegian—who was 18 years old and had been in this country since the age of four. He had been essentially abandoned, and passed from pillar to post around the care system. Persistent fairly low-level offending resulted in custody. In those circumstances, it was outrageous to deport him.

Some of the people on the charter flights to Jamaica in February 2020 were in that cohort, including young men whose offending involved belonging to county lines operations, which we all know are closely associated with coercion and modern-day slavery. Some were deported for offences committed a long time ago, with no account taken of rehabilitation.

A terrible example of that type of case is the ongoing saga of Osime Brown, a 21- year-old who is severely autistic. He arrived in the UK at the age of four from a country to which the Home Office now wants to deport him. I urge Members to have a look online at the facts and circumstances of the case and to say, hand on heart, that they have no problem with what the Home Office is up to.

The new clause changes the exceptions so that greater consideration is given to people established here at a young age and the reality that they are usually, to all intents and purposes, British, even if they do not hold that passport. It adds exceptions for people who were born in the UK, or who arrived in the UK under the age of 18 and have lived here for seven years or more. It also establishes a presumption that if a person was born in the UK, or arrived in the UK aged under 18 and has lived in the UK for a continuous period of seven years or more, they are considered socially and culturally integrated into the UK—albeit that that presumption would be rebuttable. The person would still have to show that there are very significant obstacles to reintegration.

The 33rd recommendation of Stephen Shaw’s review was:

“The Home Office should no longer routinely seek to remove those who were born in the UK or have been brought up here from an early age.”

Instead of commissioning reviews, it is time for the Government to start implementing the reviews that they have already heard from. For those reasons, I urge the Committee to look favourably on the new clauses.

The new clauses concern the principles that a court or tribunal is required to take into account when assessing what is in the public interest for the purposes of determining whether a foreign national offender’s deportation breaches article 8 of the European convention on human rights. The article 8 ECHR right to respect for private and family life is a qualified right, which can be circumcised—[Interruption.] I will have to ensure I write that one out again next time. It can be circumscribed where lawful, necessary and proportionate, in the interest of a number of factors including national security, public safety, the prevention of disorder or crime, and the protection of the rights and freedoms of others.

Section 117C of the Nationality, Immigration and Asylum Act 2002 provides that, when assessing whether deportation breaches article 8 of the ECHR, the deportation of a foreign national offender is in the public interest unless certain exceptions apply. The new clauses seek to alter those exceptions and therefore undermine Parliament’s clear position on what the public interest requires in such cases.

New clause 53 would amend the exception at section 117C regarding foreign national offenders who have been sentenced to less than four years’ imprisonment, and who have a genuine and subsisting relationship with a qualifying partner or child, meaning that deportation would not be in the public interest if it would be unreasonable for the child to leave the UK, or to remain in the UK without the foreign national offender. That would be in addition to the existing exception that applies when the effect of the deportation on the partner or child would be unduly harsh.

When assessing whether the effect on a child of deporting a foreign criminal is unduly harsh, consideration may already be given to whether it is reasonable to expect the child to leave the UK, taking into account the child’s nationality and length of residence in the United Kingdom, as well as whether it is reasonable to expect the child to remain in the UK separated from one parent. That is a higher threshold than in non-criminal cases, because of the greater public interest in deporting serious or persistent foreign criminals.

Parliament has expressly required a particularly high threshold when assessing whether the deportation of those sentenced to at least four years’ imprisonment is in the public interest. That reflects Parliament’s view—and, I would say, that of the wider public—that the more serious the offence committed by a foreign criminal, the greater the public interest in their deportation, as is explicitly set out in the 2002 Act. The best interests of any child affected by the foreign criminal’s deportation, the nationalities and immigration status of family members, as well as the nature and strength of the foreign criminal’s family relationships, are all factors relevant to the article 8 proportionality assessment, when determining whether there are compelling circumstances for such action. Section 117C already strikes the right balance between protecting affected partners and children, and the clear public interest in removing serious or persistent foreign national offenders.

New clause 54 would amend the exception at section 117(4) for foreign national offenders who have been sentenced to less than four years’ imprisonment, so that deportation would not be in the public interest if, as an alternative to someone having been lawfully resident in the UK for most of their life, they were born in the UK, or arrived here under the age of 18, and lived here for a continuous period of seven years or more. The exception currently requires the foreign national offender to be socially and culturally integrated in the UK, and for there to be significant obstacles with their integration into the country to which it is proposed they will be deported. The new clause would add a rebuttable presumption that if someone was born in the UK, or arrived here under the age of 18 and has lived here for a certain period, they are socially and culturally integrated into the United Kingdom.

Mere presence in the UK, or being born in the UK, is not an indication of integration. The assessment of whether a serious or persistent foreign criminal is socially or culturally integrated into the UK balances positive and negative factors, taking into account the foreign criminal’s length of residence in the UK, their financial independence, their ability to speak English and their criminal offending. It is right and proper that such an assessment is undertaken on a case-by-case basis.

The courts have upheld the lawfulness of the family and private life considerations that must be taken into account in relation to deportation, and agreed that they are consistent with the requirements of article 8. In both cases, the new clauses would not apply to all foreign national offenders, but only to those residing under EU free movement rights, immediately before they were revoked. That would mean applying section 117C differently to EEA citizens and their family members, than to non-EEA citizens.

It is important and right that, as far as possible, parity is created for all foreign nationals in the UK, no matter where they come from, particularly in relation to judging their criminal conduct. Where conduct is committed after the end of the transition period, an EEA citizen protected by the withdrawal agreement, or by the UK’s domestic implementation of those agreements, will be considered for deportation according to the same rules and thresholds that currently apply to third-country nationals. That creates a fair immigration system that does not privilege some foreign nationals over others.

I suggest that many members of the public would consider it right for the Home Office to take a clear view, based on legislation passed by a previous Government, about the conduct of those who have committed serious criminal offences or been persistent criminals, and seek to protect the public from them. For those reasons, the Government will not accept the new clauses.

I am grateful to the Minister for his response. We need to look at this issue much more closely, as we have only skimmed over the issues today. The Government must start collating data on the number of kids who end up being separated from a parent because of deportation, including a number of British citizens. We will ask questions and revisit the issue, but for now I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

We now come to new clause 57.

I would like to speak to new clause 55, Mr Stringer. I did not speak to it because new clause 47, with which it is grouped, was not moved.

Sorry. My script is completely wrong. I call the hon. Member to move new clause 55.