Statement of Changes in Immigration Rules

Motion of Regret
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Moved by Baroness Smith of Basildon That this House regrets that notwithstanding welcome but limited measures to ensure the deportation of foreign criminals and tackle sham marriages, and notwithstanding the importance of greater protection for the taxpayer, the Government have not demonstrated that the specific minimum annual income requirement which has been introduced through the Statement of Changes in Immigration Rules (HC 194) is the most effective way to protect taxpayers and deliver fairness for UK citizens who wish their spouse or partner to settle in the United Kingdom. Relevant document: 6th Report from the Secondary Legislation Scrutiny Committee Baroness Smith of Basildon: My Lords, I should say at the outset of this debate that we support the Government in their efforts to address and manage levels of immigration to this country and to make it easier to deport foreign criminals, but my Motion of Regret is on the specific aspect of HC 194, that part of it which sets an income threshold of 18,600 for British citizens and people settled here who wish to sponsor their spouse or partner to come to live with them in this country and of 22,400 for couples with children. I would also like, during the course of the debate, to raise with the Government the issue of Article 8 of the European Convention on Human Rights-that is, the right to respect for private and family life-and the Government's proposal to find greater legal clarity by balancing Article 8 with public interest considerations. On income threshold, of course it is right that if an individual wishes to bring their family to settle here in the UK, they should not assume that the state will support them. That is why it is already a requirement for an individual to demonstrate that they have access to sufficient funds at a level that will put them in a similar position to someone on income support here in the UK, so that they will not seek recourse to benefits. Unlike a blanket income threshold, the current position allows authorities to take into account the different ways in which a couple may be able to demonstrate that they can meet that requirement. For example, currently, the joint income of a couple can be taken into consideration when assessing whether their funds are adequate, as well as the likely employment prospects of one or both of the parties. Couples are also able to use an undertaking by members of their family in the UK to provide them with adequate funds for maintenance as evidence that they will be able to support themselves without recourse to the state. I understand that that leaves a level of discretion in decision-making, and we support efforts to provide greater clarity in the rules, to eliminate opportunities for abuse, but we must also recognise that, nowadays, we live in a world where it is commonplace to travel, to study, to do business and to work abroad, so it is only natural that people from here in the UK will travel, fall in love and form long-term and permanent relations across borders. Family circumstances are not always as straightforward as government policy assumes. Many in your Lordships' House will know of couples of different nationalities, friends and family members, who have established long-lasting relationships through living and working abroad.

When my Motion of Regret was published, I received several letters by e-mail and fax from those who have been affected by government policy. I do not know the circumstances of all those who have contacted me, but as a generalisation, I would class those who have contacted me directly as strivers-a term that the Prime Minister has used. They are people who work hard to provide for themselves and their families, not rich or wealthy people, but often people who work hard in useful jobs on wages lower than most of us in your Lordships' House have come to expect in our working lives. I want to refer to a couple of examples that I think may help your Lordships' House in considering the issue. I shall call one family Mr and Mrs M. They are a married couple. She is from a Commonwealth country; she is Canadian. Both of them have children from previous marriages. They married in 2005 in the UK and lived in the UK for a year, when she went back to Canada to go to university to complete her education, which would no doubt lead to a better job. As she puts it to me in her correspondence, it was, "Short term suffering for the long term benefits". Her husband visited Canada a couple of times and they then decided that they would settle in Canada. For a number of reasons, not least being his responsibilities to his family here in the UK, including his parents, who were getting old, he moved back home in 2010 and they agreed that she would follow him once he found work. In the meantime, his wife sent him money from her earnings in Canada to buy household items for the new home that they were going to set up here in the UK. Again, these are people trying to do the right thing in seeking to support themselves. Alfred got a job; he was doing well and she started to complete the visa application form. However, in July 2012, their world just fell apart because he did not earn the 24,800 that the Government said he had to before his wife and two children could join him. His father was a miner in Wales; he had a low income-both were proud men and proud of their work. They estimated that his wife-when they thought she was going to join them-would get a job in the region of 18,000 to 24,000. Yet despite all their planning, and all their efforts to provide for themselves, they have fallen foul of this rule and are now living on different sides of the world. There is another lady who contacted me, Miss BF. She and her non-EU partner plan to marry in December 2012. She wrote: "I do not earn 18600. I work part time as a healthcare assistant for the NHS. I am unable to work full time as I have a 14 year old son ... If I worked in London I could earn the 18600 however the cost to rent in London would probably be triple the cost of my current mortgage. The income threshold does not allow for variations in circumstances. It does not allow for the earning potential of single parents or for women in general. Our wedding plans are now on hold". So no regional variation-or, again, partner's income-is taken into account. Mr S-a highly qualified man who has worked in government in the past-also outlines in his letter to me the perverse incentive of an absolute threshold. He lives some distance from London. He says: "I'm desperately trying to find a job that would make the required 18,600 a year. In this area, that scenario is a difficult one, so I'm looking for work in London. If I secure such a job, earning the required salary, it's likely that most of this would be spent on the high costs associated with living in London. Yet the government deem this ok. However, I could

probably find a job in this area earning around 14-15,000 and would have more disposable income to support my family whilst having the assurity of living with my parents in the short term. All these are people trying to do the right thing-trying to support themselves. As there is now no flexibility in the system, but a very blunt policy of a blanket income threshold, the rules can unfairly penalise couples like Mr and Mrs M, and people like Mr S and Miss BF. Can the Minister confirm that we have members of the Armed Forces serving overseas who, if they were to marry somebody they met on duty overseas, would have an income that would fall below the level expected by the Government and who therefore would not be allowed to bring their new wife or husband back to the UK with them? People who are trying to do the right thing and who are strivers-and the Prime Minister has used both those terms-and who would so easily be capable of supporting themselves and are determined to support themselves without relying on the state, are being turned away. We need a system that delivers protection and fairness for existing tax payers, but also fairness to families like this who will ultimately be net contributors to the system. This is about the right to family life for British citizens and those permanently settled in this country. That is not an absolute right but one that is rightly qualified by the public interest test. None the less, it is of the utmost significance to the lives of many British citizens who wish to settle their families in the UK. Did the Government properly and adequately examine all the options for the most effective method of delivering fairness to both families and taxpayers? We contend that the Government have failed to do so. The Government have relied on the response of the Migration Advisory Committee for justification of the policy and the level at which the income threshold has been set. So, what was the question that the Government asked the Migration Advisory Committee, which provided the evidence that this was the correct policy? Did the Government ask: "Is an income threshold the most effective way of delivering fairness for the taxpayer and families and preventing abuse of the system?". Perhaps the Government asked the Migration Advisory Committee: "What would be the best way of ensuring that those bringing a spouse or dependent children into this country would not have recourse to public funds?". It was neither of those questions. Instead, the initial question that the Government asked the Migration Advisory Committee was framed in a way that made it clear that they had decided the policy before asking the question. It was, "What should the minimum income threshold be for sponsoring spouses/partners". The policy of a single income threshold had been decided, and the question was asked in such a way that it could only be answered with an assessment of the amount. The Government preempted any independent advice from the Migration Advisory Committee on what would be the most effective and fair process for determining adequate means of support without reliance on the state because they had already unilaterally decided on an income threshold policy.
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Why did the Government think it unnecessary to consult widely on other options? I am not passing judgment or commenting on the merits or otherwise of alternative options. I am not

aware of the evidence that would allow your Lordships' House to make a judgment. However, it seems to be a flaw in policymaking if other options were not fully consideredsuch as a bond or taking a couple's combined salary into account, and of course there will be others. An income threshold or an even higher level of savings should be independently judged against other options to see which best delivers the Government's policy objective, because this measure is flawed. In the current economic climate, an individual earning 40,000 today might lose their job tomorrow. Is an income threshold for just one member of the family really the most reliable guide to whether a family will be a net contributor to the state over time? Can the Minister confirm that the net reduction in migration via the family visa route from this policy will be around 15,700 individuals and that net migration is still around 220,000? In advising on the level, the Migration Advisory Committee acknowledged that a large proportion of current applicants via the family visa route would be unable to meet the requirement of the income threshold set out by the Government. Leaving aside the amounts required for dependent children, it is considered that the threshold of 18,600 for a spouse or partner would exclude some 45% of applicants who are currently successful and currently bound by the same obligation not to have recourse to public funds. Given that the Government's policy objective is to ensure that families should not become dependent on the state, can the Minister inform your Lordships' House whether there is evidence to show whether any, or what proportion, of the 45% who will no longer be eligible have broken that obligation in the past and sought recourse to public funds? We agree that Article 8, regarding the right to respect for private and family life, is a qualified right and must be balanced against other public interest considerations, the first of which is public safety. People who reside here on a temporary basis and do not respect the laws of this country should not be able to expect to stay here. It is right that we as a Parliament should seek clearly to establish how Article 8 should be balanced against the consideration of public interest in such cases. The Home Secretary, in a Motion before the House of Commons on 11 June 2012, stated: "Article 8 is clearly a qualified right, but Parliament has never set out how it should be qualified in practice. So, for too long, the courts have been left to decide cases under article 8 without the view of Parliament".-[Official Report, Commons 11/6/12; col. 49.] If the Home Secretary believes that Parliament has a duty to clarify the position, why did she table a Motion in the House of Commons but not in your Lordships' House? When questioned about this approach the Government responded that if a debate on this negative resolution was not triggered by a prayer against the Motion, the Government may consider alternative options to ensure that a debate was held in this House. However, if the Government recognise that they need to have a debate in both Houses to ensure that the courts get the clarity they are seeking, why did the Government not table a Motion for debate in both Houses? The Secondary Legislation Scrutiny Committee raised serious concerns about this approach in its sixth report. It said: "We also question why the Home Office is taking a different approach in the two Houses: seeking the Commons' explicit approval of a motion; but relying in the Lords on the negative

procedure". On what evidence have the Government judged that this lopsided procedure will be considered by the courts as trumping case law? The committee raised similar concerns, saying that: "While the Home Secretary's intention is clear, questions remain about whether the Government's approach can deliver it. The Home Office provides no evidence to support its view that the procedural approach it proposes will lead the courts to react in the way the Home Office anticipates ... Accordingly we draw this aspect of the policy to the special attention of the House on the grounds it may inappropriately implement its policy objective". Why have the Government not done their job properly in this regard and sought to bring forward primary legislation to grant both Houses of Parliament the opportunity to properly debate this issue and provide the courts with proper clarity on the will of Parliament? I said at the beginning of my comments that it is right that the courts have greater clarity and my right honourable friend the shadow Home Secretary, Yvette Cooper, has said in the other place, and we entirely concur, that she would be happy to work with the Government to achieve that end. The Government have recognised the lack of legal clarity surrounding the need to balance Article 8 considerations in considering the deportation of foreign criminals and yet our great fear is that they have chosen a method about which many people have serious reservations that it will make any difference at all. The number of foreign criminals deported increased every year under the previous Labour Government. That number is now falling by some 18%. Of course it is right that we crack down on sham marriages; that we seek to prevent abuse in all areas of the immigration system; and that we seek to deliver fairness for taxpayers in this country. That is why we supported an increase in the minimum probation period before settlement under the family visa route and limits on the family members who can come to the UK under this route. However, the Government have not demonstrated that the income threshold is the most effective policy to protect taxpayers and deliver fairness for those legitimate couples in this country, such as Mr and Mrs M, those I have mentioned tonight and others who have written to me and to other noble Lords, who simply wish to live with their partner or spouse in a country which they consider home and not seek recourse to public funding. It seems to me that in bringing this forward the Government are fiddling around the edges while avoiding the biggest issue; tackling the thousands of people who overstay once here and get lost in the system, often to work in the black market, undercutting the wages of people here and living in exploitative and often dangerous conditions. The Statement of Changes in Immigration Rules does a disservice to the taxpayer and to your Lordships' House. It does not address the problem as the Government seek to say it does. Baroness Browning: My Lords, I join this debate briefly because I was intrigued by the noble Baroness's Motion. I have discussed it informally with the noble Baroness. Having looked at this and made a study of average wages, I think it would be helpful if my noble friend in replying could confirm what is in the instrument, as was drawn to the attention of the House by the Secondary Legislation Scrutiny Committee in its report back in July. The committee said:

"The changes to immigration rules contained in HC 194 are extensive although mainly intended to strengthen or clarify the current position and reduce overall numbers claiming a right to settlement on the basis of family life". I welcome the fact that we are having a much more open and honest debate about immigration than perhaps we would have had three or four years ago. I read the memoir, Back from the Brink, by the right honourable Member for Edinburgh South West, Mr Alistair Darling, the former Chancellor of the Exchequer, where he confirms that perhaps things were not spoken about in the past. Immigration is an issue, and it is something about which we should be a lot clearer and have a discussion. If it is the intention of this rule that we are to reduce overall numbers, which is how I have interpreted it, equally the rule changes before the House in this instrument seem to make it absolutely clear that financially, among other things-and it is among other things, because the financial aspect of this minimum threshold of income is part of a package of rules-people who live in this country and have dependants can afford to maintain them as well as live an average life. I always think that it is difficult when we talk about averages. Therefore, the bar has been set at 18,600, although the appendix to the instrument refers to a, "Minimum income threshold of 18,600 for those who wish to sponsor the settlement in the UK of a partner of non-European Economic Area nationality", And says that a, "Higher threshold will be required for sponsoring any dependent child under the age of 18 in addition to the partner: 22,400 for one child and an additional 2,400 for each further child sponsored before the migrant parent qualifies for settlement". It would be helpful to the House if my noble friend could clarify how that threshold was set. If I have understood it correctly, it is the sort of policy that one sees elsewhere. It is a level set to ensure that people are not dependent on the state. But, equally, there is another dimension to people's wealth within the family. I wonder whether my noble friend could touch on something that was debated in some fullness, along with the economic impact of immigration, by the Economic Affairs Committee of this House. I have a copy of the committee's report from the Printed Paper Office. In 2007-08, noble Lords discussed the question of capital. Apart from the threshold of income, how is capital considered? I realise that the noble Baroness, in tabling this Motion, looked at those on low incomes and the impact that this measure might have on them, equally there are families for whom capital can be a substantial part of their income. Will my noble friend say a few words about those who sometimes would be regarded as capital rich but income poor? Capital does not seem to be mentioned here at all, so, going back to that very good report that came out of the Economic Affairs Committee of your Lordships' House in 2007-08, will my noble friend touch on that issue? In adverts that encourage people to migrate to other countries, one often finds a focus on certain occupations. In English-speaking Commonwealth countries, they are particularly focused on people with certain skills, who are able to carry out certain occupations. Presumably, apart from the need to recruit those skills into those countries, there is also a focus on the ability to be financially independent. I thought that I would contribute to today's debate as earlier in the week I went through some research that looked at levels of pay. I

realise again that we are dealing with these dreadful averages, which are never quite what our personal experience is of individual cases. For example, if we look at teachers' pay, the scale point for people newly qualified starts at 21,588. Looking at the salary bands that might apply here, we are looking at professionals and we are probably looking at people who have gained qualifications in a trade or a profession that would make them employable on coming to this country. I also took a quick look at regional variations, particularly the average salaries in cities and the different categories there. In London, the average salary is 33,000 a year, which is not typical perhaps because of the nature of London. I went up to Aberdeen and found it was 33,000-no different from London. In Bristol, in the south-west, the average was 27,900. I will not read them all out to the House but I did not find any figures in the average city salaries below the 18,600, or anywhere near it, that would sustain a family with two children. I want to ask my noble friend this question and I ask for a frank reply to it. If we are reducing the number of people allowed to come to live and work in this country-which is what the instrument is about and this is an open policy as we realise these matters need to be brought under control-are we gauging it at 18,600 plus the additional amounts for dependent children on the assumption that people will have qualifications or professions in which they can work which would add to the British economy? Is that what is steering it? Can my noble friend give some indication as to whether that figure is to recruit people where we have skills shortages or just a bar that has been set to make sure that in opening our shores to people from abroad we are not encouraging dependency on the state?
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Baroness Lister of Burtersett: My Lords, it is always a pleasure to follow the noble Baroness, Lady Browning. She has raised some very pertinent questions. While I want to focus on the income thresholds, I want also to draw attention to the concerns raised by BID, Bail for Immigration Detainees, about the implications for children of measures to ensure the deportation of foreign criminals. BID's experience is that wide powers already exist to deport foreign national ex-offenders, and in the very few appeals against this which are successful it is often because the courts have found that grave harm would be caused to a child by deporting the parents. It says that the Government are now seeking to prevent the courts from upholding the law to protect these families. In the view of BID, the measures do not allow for adequate consideration of the child's best interests. For example, it does not follow that it is in a child's best interests, if there is another relative that they can live with in the country, to live with that relative and to be permanently parted from their parents; or, say, if the parents have been in prison and the child has been living in foster care, for them to be deported with their parent to a country that they have never visited before. Liberty, too, raises concerns about the implications of the changes for children and concludes: "It is clear from the Government's proposals that it is paying little more than lip service to the importance of UK children's interests in immigration decisions ... Far from placing children

at the heart of immigration decisions, the proposed changes seek to relieve officials of the responsibility for weighing up the interests of a child in any but the most clear cut cases". I would welcome the Minister's response to that and his explanation of how children's interests will be safeguarded. As we have heard, the Home Office's human rights statement and the Home Secretary have emphasised that Article 8 of the European Convention on Human Rights, on the right to respect for privacy and family life, is a qualified right. As my noble friend Lady Smith has already said, we accept that. However, as Liberty argues, there is, "A delicate balancing exercise to be struck between the rights of the individual and wider social interests in, for example, the reduction of crime and disorder and the protection of the economic interests of the UK". Liberty and I do not accept that the proposed changes, "Properly accommodate the fact-sensitive balancing exercise that the right demands". Liberty argues that instead they, "Represent a one-size-fits-all approach to complex immigration decisions. ... Far from better reflecting the proportionality required under Article 8, the proposed changes seek to circumvent the crucial fact sensitive consideration of decisions involving fundamental rights". The Government argue that the income threshold is proportionate in meeting their legitimate aims of safeguarding the economic well-being of the UK. It is a sad day when the economic well-being of the UK depends on keeping apart a few thousand poor families each year without adequate attention being given to safeguarding the well-being of children and their families. The Migrant Rights Network points out that, because of differences in earnings across different social groups, the new income requirement will disadvantage women, who we know are still on average paid less than men, some minority ethnic groups and people living outside the south-east. My noble friend gave an example that illustrated the unfairness of that fairly arbitrary or one-size-fits-all limit. The Home Office human rights statement acknowledges that the income threshold may be challenged under Article 14 of the European Convention of Human Rights in terms of its equalities impact, particularly with regard to whether this constitutes unjustified indirect discrimination against these groups-for example, women and those nationalities who the evidence shows are likely to have lower earnings. Having raised this possibility, the Home Office's only answer was that this will be mitigated in some cases by the exemption from the income threshold of those in receipt of carer's allowance, and that certain contributory benefits such as maternity allowance will be allowed to count towards the income threshold. That is welcome as far as it goes, but it does not go very far. Otherwise, the Home Office considers that any indirect discrimination is proportionate to public policy objectives. We will see, but I imagine that this will be tested in the courts.

I find it repugnant that we are going to means test family life. Means-testing generally purports to target help on the needy and exclude the better off. This is a reverse means test that excludes the needy, as if people on low incomes have nothing to contribute to this country. The existing "recourse to public funds" rule is already designed to prevent the supposed burden on the taxpayer that we hear so much about. According to Liberty, and as my noble friend has already said, it is being replaced by a far blunter instrument. The impact statement makes a virtue of the shift from a more discretionary approach, which it says is complicated for caseworkers to operate, yet in other areas of policy the Government favour more discretionary approaches and say that we have to get away from a one-size-fitsall approach. Indeed, as Liberty argues, the proposed changes as a whole contain an armoury of blunt instruments which, far from better reflecting Article 8 and the Immigration Rules, may well leave the rules in breach of it. The changes reflect badly on a Government who claim to be the most family-friendly Government ever and who are supposed to be applying a family test to all their domestic policy decisions, as they suggest that some families are considered not to matter because of their immigration status and their poverty. Lord Avebury: My Lords, this is a very important debate, focusing as it does on family and children's rights. We have all heard from organisations such as the ones that have been mentioned, including by the noble Baroness, Lady Lister-Liberty, Bail for Immigration Detainees, and so on-and I shall rely on the evidence that has been given to them in my later remarks. Since these changes were published, a further three sets of changes have appeared: HC 514 of eight pages, HC 565 comprising 56 pages and Cm 8423 with 276 pages. These latter two statements spell out in detail how decisions on leave to enter or remain are to be made, following the rulings of the Supreme Court in Alvi. To summarise, at the risk of oversimplification, Alvi said that statements in guidance and elsewhere that were not in the immigration rules, such as particular types of evidence that have to be submitted with an application, were unlawful because they had not been laid before Parliament as required by the parent Act. I realise that we are not talking about these subsequent statements of changes this evening, but obviously the legal advisers and their clients who are considering the effects of HC 194 will have to look at these other instruments as well. It would be astonishing if, given the length and complexity of all the changes taken together, there were not a steep rise in the number of applications rejected because of some minor omission or mistake. My first example is from the organisation BritCits, which defends the interests of families who are affected by this set of changes. Rob is a British professional musician with a firstclass degree in music. He has taught music and performed at concerts, has an eight year-old son and lives in a detached house in Huddersfield. He fell in love with and married an Indonesian woman and his wife applied for a spouse visa on 26 June. As a self-employed worker, he submitted three years of bank statements-originals and copies-and everything as requested, leaving no stone unturned. For over two months the message was that the application was under process at the British Embassy, until early September when an e-mail arrived asking for the spouse to take an SELT English test. The e-mail indicated that if she did not submit this within seven days, the application would be rejected. Despite the short notice, the wife took the test and submitted it on time. A month later, they received a message saying that the application was refused because of the English test. Rob was amazed because

his wife's English was extremely good. On inquiry, they found that she had passed the reading, writing and listening requirements but had inadvertently omitted the speaking part. A lawyer advised them that the only remedy was to lodge a fresh application, at a cost of 900. The same thing happened to a friend of mine. It is not an uncommon experience for people to make a minor error and find that the whole application has been rejected. The UKBA does not give applicants a chance of remedying minor omissions of this sort. The Motion says that the Government have not demonstrated that the specific minimum financial requirement is the most effective way to deliver fairness. That stricture can also be extended to the provisions dealing with savings. This may answer part of the question put by the noble Baroness, Lady Browning: I quote the example of a woman with three children applying to join her husband who would have to show evidence of savings of 62,500, which is well beyond the resources of most young families. A four-page guide produced by UKBA tells applicants that they need to read Appendix FMSE, another 26 pages of dense prose, which was added to the rules on 20 July, specifying what supporting documents may or not be supplied as evidence of compliance with particular financial requirements. The sums involved are undoubtedly substantial and they mean that many spouses and children who would have been able to satisfy the previous requirementthat they could be supported and accommodated without reliance on public funds-will now be denied entry. That is, indeed, the letter of Government policy. The Migration Advisory Committee estimates that if the financial requirement in this set of rules had been in force in 2011, it would have excluded 45% of successful applicants, even though all those spouses and children were assessed as not needing access to public funds.
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The 18,600 limit is to be applied to the sponsor alone-no account being taken of the potential earnings of the spouse, the support provided in many cases by third parties such as the spouse's parents, or the provision of free accommodation by parents or other relatives. Aaron, a British citizen who is married to Kano, a Japanese woman he met when she was in the UK on a two-year working holiday, lives in Bristol where all his family and friends are also based. It is an area of low pay but also of lower living costs, and Aaron earns just under the 18,600 threshold. With his wife's potential earnings, the couple would be easily able to support themselves without recourse to public funds, but that cuts no ice under these new rules. Then there is the treatment of elderly parents, which has not been mentioned so far. Sonel is a British citizen living in the UK for more than 12 years. She has worked for the British Government, paid her taxes and never claimed a penny in benefits. She now wants the right to bring her elderly parents here from Australia, where they have no family, so that she can look after them in their old age. However, the new rules state that if you have two parents living together in another country, you can bring them here only if they are so incapacitated that they cannot dress, wash or cook for themselves. Even that is not enough, though; I believe that the rule has been designed to prevent any elderly parents being able to join their children here, although every other country in Europe allows it, and I ask my noble friend to say how many have actually managed to get past this rule-or how many he thinks will get past it.

The Government want to get total net immigration down to below 100,000 by hook or by crook, and they do not care if in the process they divide thousands of families by excluding spouses and elderly parents. In doing so, they have gone as far as they dared towards the limit set by Article 8, taking into account the qualification set out in the Explanatory Memorandum. The former Minister for Immigration, Damian Green, said rightly that no set of rules can deal with 100% of cases, but he was wrong to suggest that genuinely exceptional circumstances could be dealt with by means of discretion exercised outside the rules. In the case of EB (Kosovo) in 2008, the House of Lords declared: "The search for a hard-edged or bright-line rule to be applied in the generality of cases is incompatible with the difficult evaluative exercise which article 8 requires". The inference of the new rules is that an evaluation of private and family rights under Article 8 is not necessary because they are already taken care of in the text of the rules. There will be no exceptionality test because, as the Supreme Court and the House of Lords have said repeatedly, there is no such thing. There is no specific requirement, for example, to consider the best interests of the child or to have regard to the age, health or vulnerability of any person affected by a decision. Where there have been significant delays by the UKBA and the weight given to the public interest in favour of a person's removal has thereby diminished, there is no scope to vary the decision dictated by these Procrustean rules. The Home Office points out that in assessing the proportionality of decisions under Article 8, decision-makers were not able to rely on the rules to ensure compliance with Article 8, but the Home Office is wrong to conclude that the practice of the courts and the inadequacy of the rules prior to the statement that we are discussing, "Led to unpredictability and inconsistency which are anathema to good administration". One of the main causes of this unpredictability and inconsistency was the Home Office's failure to accept and implement the judgments of the courts, both domestic and European, and to issue corresponding guidance to the decision-makers and presenting officers so that they would refrain from trying to advance long-rejected arguments about the application of Article 8 and, latterly, the best interests of children. This was one of the reasons why UKBA lost 36% of the cases that went to appeal in 2010-11. It is also not clear that the UN Convention on the Rights of the Child is satisfied by the absence of any discretion. The Explanatory Memorandum states at paragraph 7.5 that, "where a child would have to leave the UK as a consequence of the decision to remove their parent ... the best interests of the child will normally be met by remaining with their parents and returning with them to the country of origin, subject to considerations of long residence in the UK", And any exceptional factors. In many of the deportation appeals that currently succeed on Article 8 grounds, children will have been separated for periods of years from parents serving prison sentences. They may

have formed strong bonds with their foster carers, and being suddenly separated from these carers could be very harmful to them. At the same time, though, the involvement of their parent in their daily care could be of vital importance to the child's well-being. If so, it is unlikely that the child's best interests will be served by reuniting her with this parent at the boarding gate of a flight to a country where they have never been before, as part of a forcible deportation. In these and other situations, the best interests of the child may be served by giving her the chance to re-establish a relationship with their parent in the UK, while still having the support of the foster parents. Yet there is no allowance for this in the Statement. The policy vacuum that the Home Office says is caused by keeping proportionality decisions outside the rules could easily have been remedied by changes in the rules that reflected the decisions of the courts. I would be grateful if my noble friend could say how it plans to deal in the future with decisions that go against it on grounds of proportionality, as may well occur. Just because Parliament says that it has drawn lines saying what the boundaries of proportionality are does not mean that those boundaries are unchallengeable, or that the courts will treat them as sacrosanct. The Lord Bishop of St Edmundsbury and Ipswich: My Lords, I do not mean to detain the House for long, but I would like to echo some of the concerns that have been mentioned today, particularly on the inflexibility of the income test. Looking at what is laid before us -a specified gross annual income of at least 18,600, an additional 3,800 for the first child and an additional 2,400 for each additional child-a clergy family with three children would not earn enough stipend to meet that test. The reason why they survive very well is because their housing costs are met, as are their council tax, and there are other means of keeping them housed in areas where the Church wants them to live and minister. I can think of two examples of a UK passport holder, a member of the clergy, whose spouse holds a foreign passport outside the EU, one of whom has three children. Whatever you think of the mission of the church, which is of course promoting the Christian religion of the Church of England, one of them also lives in an extremely deprived area, and the social capital that he has added to that area, is considerable. This is not simply someone coming to take advantage of the state but someone who has given an awful lot, which has been recognised by local authorities. Inflexible rules cannot deal with these sorts of difficult anomalies, and so discretion needs to come in. The overall thing that I would like to echo is: how is this now being monitored? How is it being applied, and is it applied fairly? When UK Border Agency hard cases come into the public domain, anxiety is always raised, and of course it is easy to do that. I appreciate the fact that these are hard-working officials, and indeed, when given an opportunity to meet some of them I appreciated their frankness and their willingness to look at how they might help. Nevertheless, there are too many stories of the difficulty that the noble Lord, Lord Avebury, described as happening in some of these applications. I can think of another member of the clergy, a UK passport holder, who was going through the whole process to help his spouse to get leave to remain. They were told that they could not apply before a certain time limit. They applied at the time limit and then, when they applied for a slot for her interview, they were told "There are no slots left". These are intelligent people who can cope with that sort of thing, but there are many people who cannot. I do not think that anyone in this Chamber would want to deny the scale of the problem that we must face as a country, but against that background, having realised the problem, where

are fairness and justice going to be helped to be seen to be done, and how is the UK Border Agency being monitored to see that it is applying standards of fairness to the best of its ability? Lord Teverson: My Lords, I thank the noble Baroness, Lady Smith of Basildon, very much for bringing this regret Motion before the House. In fact, if anything, I regret that it is only a regret Motion. I would certainly have followed her through any Lobby if it were more of a fatal Motion because I feel that there are some fundamental issues here. It is interesting that this regret Motion has been put forward this week. My weeks are often imaged by the cover of the Economist, which I read most weeks. This week it is inaccurate in one way, although accurate in another. It says: "Immigration: The Tories' barmiest policy". Of course, that is wrong. It is not a Tory policy; it is a coalition policy. It includes my party as well. Its argument is that the policy on immigration very much restricts the economic and financial potential of this country, but here we have pinpointed an area where we are restricting the moral, ethical and family aspects of our society within the UK. I say to the noble Baroness that I was probably one of the few people in this country to be very disappointed that the leader of the Opposition apologised for Labour's "migration mistakes" in 2004, which allowed the best talent from the new European member stateswhich in many ways we had treated treacherously in the settlement after the Second World War-to come to this country, because they were restricted in going to other EU states. They repopulated much of Scotland, and in the south-west, where I come from, they manned much of the tourist industry, which had found it difficult to find talented and energetic workers. Therefore, I regret that that happened. I understand entirely that sham marriages exist. They are a cancer on the institution of marriage and they are probably growing in number. That has to be stopped by whatever means possible. I also agree that there cannot be limitless migration. However, our society is becoming more and more international. Taking my family as an example, some of my wife's children live in Singapore and others live in Argentina. Her grandchildren have mixed religious affiliations and mixed nationalities. People meet other people more and more on an international basis, particularly when they are youngsters and in their first areas of work. Therefore, this problem is going to get worse. I say to the Minister that I believe this matter comes down to two important issues. Those are fundamentally moral and ethical, with human rights perhaps coming third. First, it must be fundamentally in the DNA of the UK that its citizens can marry whomever they want. That has to be a basic right of our citizens, who have one of the greatest and deepest histories in terms of being able to exercise individual rights. I also say to my Conservative colleaguesperhaps not the ones who are here but some of the others-that it is absolutely wrong for the state to intervene so strongly in deciding whom you are able to marry and live with. It is wrong that the state should be able to intervene to that degree. If the marriage is a real oneand that is always the important question-then people should be able to marry exactly whom they like and to live exactly where they like.

Baroness Hamwee: My Lords, I confess to a number of areas of confusion, the first being what the rules actually say. Other noble Lords have referred to their complexity. For me, looking at any set of Immigration Rules is a quick route to a migraine. I have been used to reading rather more than glossy magazines in the course of my career, so if I find them difficult-without wanting to be too big-headed-then so will many, many others. I was reassured, in a sense, by the briefing from the Immigration Law Practitioners' Association but that reassurance is very limited. It tells us that it is running advanced courses for solicitors and barristers on the financial requirements that are a part of these rules and has sent noble Lords an extract from its training notes, just to give us a glimpse of the complexity. Our laws should be accessible. Immigration is so difficult that legal practitioners have to be specially licensed. I, for one, am very grateful to the organisations that have briefed us. They helped me to short-circuit the work for this debate quite a lot, but that is not good enough when you are actually advising individuals.
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The second area of confusion is on procedures. I do not normally like getting hung up on procedures, because it is the substance that matters, but this is Something to which the noble Baroness referred because it is within the report of the Secondary Legislation Scrutiny Committee, of which I am a member. It commented that it was important to know the basis of a debate because that affected the "steer" that the courts would take. Since the rules are now in force, the distinction to which it drew attention between a general debate and a prayer may be history, to an extent. However, that is probably history which will repeat itself in the future. I certainly agree that how we deal with Immigration Rules-I would use both an upper and a lower case "r" for that-leaves a good deal to be desired. Thirdly, I have to say that there is a little confusion about the Motion itself. It is not like the noble Baroness not to be straightforward. I think I read in her Motion that the rules are welcome, but not welcome enough, on deportation and that "protection for the taxpayer" is important. However, I then get a bit stuck on the phrase, "Notwithstanding the importance of greater protection for the taxpayer". I am not sure where the noble Baroness was pointing your Lordships with that reference. I think I am rather more critical than she is on that basis, and in two respects. First, the taxpayer has an interest in the system working well on its own terms-there must be a question of whether one so complex actually does so-and, secondly, in the value for money of its administration. There is also the wider interest of the taxpayer: yes, in value for money but this taxpayer, for one, believes that being in a country that welcomes immigrants and what they bring in terms of their culture as well as their skills is important, as is being in a country which recognises the breadth and depth of its moral responsibilities and is conscious of its reputation. I am instinctively uneasy at the implication that a restrictive immigration policy is the best way to protect taxpayers. There are of course few subjects more emotive than immigration, although noble Lords who have had anything to do with local government will know that dogs and trees are up there with it. I believe that it really would put the wider debate on immigration policy on a much firmer footing if responsibility for immigration statistics were in the hands of the Office for National Statistics.

I understand that the Government are seeking to provide clarity and certainty around the application of Article 8. However, Article 8 does not really lend itself to certainty-certainly not to complete certainty. It is not absolute, being conditional and circumscribed, so the rules themselves provide, to quote the ones on deportation, "only ... in exceptional circumstances", and "normally" to be proportionate. My noble friend Lord Avebury has reminded us that Lord Bingham said: "The search for a hard-edged or bright-line rule to be applied to the generality of cases is incompatible with the difficult evaluative exercise which article 8 requires", because each case, being different, requires judgment and discretion. Many of the rules throw up a particular concern about the interests of any child who is involved. The 2009 Act places a duty on the Secretary of State to put in place arrangements for ensuring that "regard" is given to the need to safeguard and promote the welfare of a child in the UK in relation to immigration. I am not entirely clear how much of the concern arises from the rules and how much is underlying the rules from that primary legislation. But it is certainly the case that the interests of the child are not paramount in this area. "Regard" is only a point along the spectrum, and we have been given a number of examples of how family life and the interests of the child have been and will be affected. Liberty has drawn attention to its concern that: "Far from better reflecting the proportionality required under Article 8, the proposed changes seek to circumvent the crucial fact sensitive consideration of decisions involving fundamental rights". There are, of course, real concerns about the impact of the rules. Having read the statement dealing with the presumption that a person is liable to deportation if the public interest requires it-which covers a lot more ground than just when there has been a criminal offencesomething occurred to me. Without wanting to condone criminal behaviour, because my party has made it very clear that we seek to prioritise the deportation of criminals, could some immigrants, being destitute, have been driven to petty crime? Have we placed them in that situation? Rule 399 seems to be very tough, but it includes discretion. It states that "leave may be granted" and that a: "Person may qualify for further limited leave". I do not understand whether these provisions are giving the Secretary of State discretion. I do not know whether the Minister will be in a position to amplify this tonight because I have not given notice of this question, so perhaps he can do so later. But do Rules 399B and 399C, from which those extracts come, give the Secretary of State discretion or do they do something else? I would be glad to have an explanation at some point. Turning to those who seek to come into this country and the financial requirements, I recognise that 18,600 is at the lowest end of the range in the Migration Advisory Committee report. I am pleased that, as a result of my party's influence, the figure was not predicated on earning the median wage. But they are complex figures. The noble Baroness, Lady

Browning, referred to the question of capital and the rules give us a multiplier of 2.5. It would be helpful if the Minister could tell us how that figure was arrived at. I must say to the noble Baroness that Aberdeen, in both its income levels and housing costs, is very close to London, but the rest of Scotland is mostly rather different. I am concerned about the probationary period. As I read it, a couple who have lived together overseas for four years have to live together for a further five years when they come to this country to qualify for leave. That takes us beyond the seven-year itch. The qualifying periods seem long. When I say long, I mean that they do not recognise the closeness of a relationship to which my noble friend Lord Teverson referred. The English language requirements are something to which my noble friend Lord Avebury drew attention and about which he expressed concern in a debate earlier this year. I will not talk about those any further but they are on the agenda in this context, too. As almost all noble Lords have said, and the noble Baroness was very clear about this, we live in a world where people meet partners from overseas, but the rules do not seem consistent with the Government's express support for marriage and family life. My own personal example is of a young woman, not an EEA national, married to a British man. She is a human rights lawyer, employed by an international agency a long way from the EEA, and she wants to join him here. The five-year probationary period will make it very difficult for her because the sort of job that she would be looking for-ironically, in the human rights fieldwould be likely to be in somewhere like Geneva or Brussels, and she would jeopardise her UK status if she were to pursue her admirable career in that way. The changes will not, as the Home Secretary has acknowledged, mean big differences in terms of a reduction in migration so I close by repeating my call for migration statistics to beif I can put it this way-migrated to the Office for National Statistics. The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach): My Lords, I welcome this debate. The Motion tabled by the noble Baroness, Lady Smith, has given us an opportunity to debate this matter in this House. It has been a good debate and a lot of very interesting aspects of these rules have been raised. I am sure that noble Lords will not expect me to comment on individual cases. My noble friend Lady Hamwee did me a good turn by referring to the complexity of the rules because they are indeed extremely complex. If I fail to cover particular aspects of the points made and questions asked, I hope that noble Lords will forgive me if I address them in correspondence after the debate. These new rules are a major reform of the requirements for family migration by people of non-European Economic Area nationality. They form part, as noble Lords have said, of the Government's overall programme of reform of all routes of entry into the UK. The new family rules have three aspects, and I thank my noble friend Lady Browning for her welcome of these three aims. My noble friend Lord Teverson pointed out that the coalition has taken a different view from his own. I accept that but I think he will agree that the coalition is being consistent in its approach of this vexed problem of immigration. I would also like to thank the noble Baroness, Lady Smith, for her general support of elements of these rules. First, they tackle abuse; for example, by extending from two to five years the probationary period before partners can apply for settlement to test the genuineness of the relationship concerned. My noble friend Lady Hamwee questioned that, but I believe

that it is a reasonable expectation which should help to deter applications based on sham marriages.
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The new rules also make it harder for foreign criminals to prevent their deportation from the UK through weak claims to a family or private life here under Article 8 of the European Convention on Human Rights. The rules now correctly reflect the strong public interest under Article 8 in seeing foreign criminals removed from this country. I welcome the support that the noble Baroness has given to these measures. Through my noble friend Lady Hamwee, I thank the noble Lord, Lord Goodlad-who is not in his place at the moment-and the members of the Secondary Legislation Scrutiny Committee for drawing the rules to the attention of the House. The committee has reviewed the new rules and made some important observations about the relationship between them and the European Convention on Human Rights. The Immigration Minister, Mr Mark Harper, has written to the committee in response. I cannot be sure that noble Lords will have seen that letter, but, with the leave of the House, I shall place a copy in the Library. Perhaps I should comment on why there have been different parliamentary procedures in the Commons and in the Lords. It was explained by the approach of the Home Secretary in her Oral Statement to the House of Commons on 11 June. The House of Commons had a fourhour debate on this issue; we are having a debate here, too, to address these important issues because the rules of this House enable a Prayer to be tabled against rules of this nature. I am pleased that we have had the opportunity of doing so. I hope that we will continue to scrutinise this important area of government policy. I may return to the purpose of these changes. Our second aim is to promote the integration of family migrants into British society; for example, by requiring those applying for settlement from October 2013 to demonstrate that they can speak and understand English at intermediate level. I do not think that any noble Lord has criticised that proposal, although my noble friend Lord Avebury pointed to a situation where somebody had fouled up the test by not completing it properly. I think that it is a reasonable expectation which enhances the rules. The third objective, which has aroused considerable debate, is to reduce burdens on taxpayers, in particular by introducing a minimum income threshold of 18,600 a year to be met by those wishing to sponsor the settlement of a partner, with higher amounts for sponsoring dependent children. I do not think that I paraphrase the noble Baroness too much in saying that this was really at the heart of her Motion. Those who wish to establish their family life here must be able to stand on their own feet financially. Family migration needs to be on such a properly sustainable basis, which is in the interests of migrants and of communities in the UK as a whole. The previous requirement, for applicants to be maintained adequately -for which there was a test, despite what the noble Baroness, Lady Lister, said when she questioned the need for a threshold-was interpreted by the court as income equivalent to the level of income support, which is around 5,500 a year for a couple. This, frankly, was not an adequate basis for sustainable family migration and good integration outcomes. In particular, it provided little assurance that UK-based sponsors and their migrant partner could financially support themselves and any dependants over the long-term.

Section 115 of the Immigration and Asylum Act 1999 generally prevents a migrant partner accessing welfare benefits before they qualify for settlement but not thereafter. The Department for Work and Pensions has estimated that in February 2011-these are the figures that I have-around 267,000, or 5%, of payments of working-age benefits were made to migrants of non-EEA nationality when they registered for a national insurance number. This included migrants who entered the UK through the family route. The old maintenance requirement also involved a complex assessment of the current and prospective employment income of the parties, of the extent of their other financial meansincluding current and promised support from third parties-and of their housing costs. It also relied on complex provisions in the Immigration Rules designed to prevent sponsors accessing additional benefits from the migrant's presence in the UK, which were hard to administer effectively. That is why the Government have decided to established a new financial requirement for sponsoring family migrants which is fair and transparent and which helps to prevent family migrants becoming a burden on the taxpayer. As has been pointed out by noble Lords, the minimum income threshold of 18,600 for sponsoring a partner and the higher levels for also sponsoring dependent children at 22,400 for one child and an additional 2,400 for each further child-and I reassure my noble friend Lady Browning that she has those figures right-are based on the independent advice of the Migration Advisory Committee. These reflect the level at which, taking account of any children, a couple once settled in the UK generally ceases to be able to access income-related benefits. The Government consider this to be a fair and adequate basis for family migration that is right for migrants, local communities and the country as a whole. My noble friend Lady Browning rightly got to the nub of this issue when she asked why the income is set at 18,600. It is set at this level because people earning this amount will have skills to contribute to the UK economy, and it is the level of income at which the Migration Advisory Committee advised that a couple once settled generally cease to be able to access incomerelated benefits. Lord Avebury: My Lords, if that is the case, why have the Government refused to take into account the income provided by the spouse? Surely, if the 18,600 figure is sufficient to ensure that recourse to public funds is not on the cards, then that 18,600 should apply to the joint incomes, not to the income of the sponsor. Lord Taylor of Holbeach: That is the decision that was made. The Migration Advisory Committee was asked to look at the amount of money that a couple would require on the single income-the sponsor's income. Indeed, it is the sponsor's income that is vital to understanding this case. My noble friend also asked how the capital should be dealt with. As pointed out by my noble friend Lady Hamwee, the multiplier is two and a half times the shortfall in income, and that, too, I believe, came from the same recommendation from the Migration Advisory Committee. Baroness Hamwee: My Lords, while the Minister is on that point, it would be helpful to the House if after today we could have an explanation of what lies behind both that action, which is less of an issue because it is a judgment, and my noble friend's question about why a

spouse's income is disregarded. Indeed, one could add to that the question of why support from a third party, such as a parent of one of the spouses who would be prepared to guarantee the income, which I am sure is not uncommon, should be disregarded. What lay behind those decisions? What was the rationale? I do not expect the Minister to answer that now. Lord Taylor of Holbeach: It would be much easier for me if I could inform myself before I sought to inform the House on that issue. I have stated the position as I know it to be, without knowing fully the policy development that led to that conclusion. There has been criticism of the fact that there is no regional variation but, once people are in this country, they are free to move wherever, and it was felt that there could be great difficulties if a regional variation were permitted for that very reason. The noble Baroness, Lady Smith, expressed concern about what will happen to people who lose their jobs. We will expect a migrant to be able to meet the same financial threshold when they apply for further leave but, once the migrant is in the UK, we count any income that they earn, as well as money from their sponsor, towards the threshold. That is an important response to the question raised by my noble friend Lord Avebury. In some circumstances, we will allow the migrant to continue at a lower rate on a longer route to settlement to allow that transition to take place. Both the noble Baroness and my noble friend asked about prospective earnings and I will seek to answer that in correspondence, as I promised. We have also built significant flexibility into the operation of the threshold-for example, by exempting sponsors in receipt of certain disability-related benefits or carers' allowance. I was asked specifically by the noble Baroness, Lady Smith, about the Armed Forces. The Armed Forces are exempt from these rules. The noble Baroness, Lady Lister of Burtersett, felt, as did several noble Lords, that the rules were not sufficiently focused on children. We understand the importance of the statutory duty, which goes back to the Borders, Citizenship and Immigration Act, to safeguard and promote the welfare of children in the UK. That is why we have reinforced our approach by bringing consideration of the welfare or best interests of children into the Immigration Rules. After all, the best interests of the child will normally be met by remaining with their parents and returning with them to their country of origin, subject to considerations such as long residence in the UK, their nationality and any exceptional factors. The new rules lay out a clear framework for weighing the best interests of the child against the wider public interest in removal cases. The minimum income requirement that we have introduced is, I believe, the most effective way to protect taxpayers and deliver fairness in respect of family migration to the UK. I invite the noble Baroness, Lady Smith, to reflect on my response.
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Baroness Smith of Basildon: My Lords, I will reflect on the Minister's response and will read and consider his comments in Hansard. However, I have to say that at this stage I am disappointed by his response; I wonder if he took on board any of the comments around the House about the devastating impact that this threshold is having on so many families. All of us in your Lordships' House understand the need to tackle abuses-this was said to the

Minister-but this measure goes beyond that and I do not think, as other noble Lords have illustrated, that it actually achieves the Government's policy objectives. The Minister said that it more effectively reduced the burden on the taxpayer and was fair to families. Based on the examples he has heard this evening, however, it does not seem a very effective way to protect the taxpayer. The issue is not just the level of the threshold but the principle of the threshold. He claimed that one of the questions I asked was what happened if somebody lost their job. That was not the question I asked at all; the point that I was putting to the Minister was that a threshold is an inadequate way of making an assessment, as someone could be above that threshold and then lose their job but still have the right to remain, since a judgment was made at one point in time based on a person's income, rather than on a package of measures that was available previously. I appreciate that he cannot comment on individual cases, but Mr and Mrs M, the lady from Canada and her husband from Wales; the lady who was the NHS care worker; and the clergymen referred to by the right reverend Prelate the Bishop of St Edmundsbury and Ipswich who wanted to come or bring their spouses to this country will all listen to the Minister's comments with some dismay. I appreciate that he was not able to answer all the questions but I was disappointed that he answered so few. I mentioned one to him about the perverse incentive where an individual would have to go and live in a more expensive part of the country to see their income increase, even though their costs would increase, including their rent or mortgage, and their disposable income would fall. That would qualify them to be able to bring their spouse into the country because they had a higher income level. That is a perverse incentive, to have a lower disposable income. The Minister did not comment on that. Nor did he comment on any of the examples-I am sure that this was not intended-of Church of England clergy's partners being excluded from the UK. He also said that the Migration Advisory Committee supported the level but my understanding is that the committee was asked what the level should be; it was not asked to comment on the proposals generally or on whether this was the most appropriate way to achieve the Government's objective. I was especially hoping that the Minister would respond on the following issue that I raised. The Migration Advisory Committee, in its response to the Government, said that, of those who satisfied the current criteria of being able to show they had access to sufficient funds to support themselves and their families, 45% would no longer be eligible under the new criteria to have their spouses come to this country. I asked him how many of those who were eligible under the current procedures would not be allowed under the new rules and have since claimed access to public funds. He has not answered that. The answer that he gave was that 267 individuals now claim some kind of public support or assistance, but he was unable to tell us how many of those had come to this country through the existing rules on family visas. If he does have that figure, it would be extremely helpful to have it. I suspect that it might not be available but it might have been provided to him. It would have been a more useful figure and the one that I asked for. Obviously we understand the need to ensure that the system is not abused, but I fear that what is being done here today will not protect the taxpayer in the way that the Minister seeks, and it certainly does not protect the family. I beg to withdraw the motion. Motion withdrawn.