UK Borders Bill

I wish to speak to three of the four amendments in this group and to support my hon. Friend the Member for Totnes (Mr. Steen) on amendment No. 36, which I recognise from proceedings in Committee and which seems extremely sensible. New clause 2 would extend the duty under section 11 of the Children Act 2004 to make arrangements to safeguard and promote children’s welfare to those providing services to refugee children and families, specifically immigration removal centres, the National Asylum Support Service and those dealing with refugee children at ports of entry. Section 11 places a duty on relevant agencies providing services to children to have regard to the need to safeguard and promote their welfare in discharge of their normal functions. The services with primary responsibility for the welfare and support of refugee children and their families, including the immigration service, are currently excluded from the otherwise long list of those to whom the duty applies. Ministers have addressed this issue. The Home Office’s consultation paper, ““Planning Better Outcomes and Support for Unaccompanied Asylum Seeking Children””, which was published in February, says:"““Young asylum seekers, whether children in need or looked after children, matter every bit as much as other young people in the context of meeting each and all of the five outcomes of the Every Child Matters framework.””" That is not a great piece of prose, but the thinking behind it is extremely good. In this context it is noteworthy, and perhaps alarming, that the Government do not seek to offer refugee children the protection afforded by section 11. Ministers will be aware that the Refugee Children’s Consortium campaigned to ensure that refugee children would have the same protection as other children under the section 11 duty. The Joint Committee on Human Rights, whose Chairman I see in his place, has criticised the Government’s position, stating:"““the omission of this particular group of children from the institutional arrangements designed to fulfil the State’s positive obligations to children under articles 2, 3 and 8 raises the question of whether this gives rise to unjustifiable discrimination in the enjoyment of Convention rights.””" In the other place, Ministers argued that the inclusion of the refugee agencies would be overly restrictive. They also argued that in undertaking its primary function, the IND, as it then was, would do things that would be judged as inconsistent with a duty to safeguard and promote welfare. That is the nub of a debate that has been running for a long time. It is worth going back to first principles. Section 11 of the 2004 Act is not an absolute duty—it simply requires agencies to make arrangements to have regard to the need to safeguard children and promote their welfare when they discharge their functions. As Ministers said in another place:"““We have been very careful in the way in which we have worded this clause: we do not put a duty on agencies that would make them unable to fulfil their primary functions.””—[Official Report, House of Lords, 17 June 2004; Vol. 662, c. 995.]" Conservative Members certainly do not dispute that the primary function of the immigration service is to ensure effective immigration control, but similarly we would argue, as would everyone, that the primary function of the police is to ensure public order and prevent crime—yet the chief officer of police is included in the section 11 duty. The explanatory notes to the 2004 Act state:"““This duty is intended to ensure that agencies are conscious of the need to safeguard children and promote their welfare in the course of exercising their normal functions.””" The analogy is a good one. If the police can be regarded as exercising their proper central functions while having regard to the constraint, it is hard to understand from first principles why immigration bodies should not be able to fulfil their functions while operating under it. The Refugee Children’s Consortium has taken legal advice, which states that section 11 would not prevent the Home Secretary from implementing removal directions for a child or his or her family and would, at most, affect the manner in which the removal occurred. Decent legal advice therefore shows that the exercise of the duty would not damage the proper functions of not only the front-line agencies but Ministers and officials when making the most difficult decisions about removal. I am sure that the Minister knows that the Children’s Commissioner for England has described the refugee services’ omission from section 11 as ““a great disappointment.”” He also said that he believes that the exclusions are already having an impact on relations between those who are subject to the duty and those who are not. The Refugee Children’s Consortium argues that the standards of safeguarding for that group of children are inadequate. The Minister is a decent and humane man and will not wish children to be made more vulnerable through the lack of the duty, which would not impede the proper function of the immigration service. In Committee, the Minister tried to assure us. He made the point that a wider debate was going on, and that discussions were taking place between the children’s champion in the immigration and nationality directorate and the Children’s Commissioner for England about the way in which the IND could be subject to section 11. He said that he did not want to pre-empt the outcome of those discussions, but he would explore what information he could provide at the earliest opportunity. Now is his chance not only to provide the information but to change the Government’s stance on the issue. I am clearly not alone in my view. A wide coalition of interests argues that the Government are simply wrong about the matter. New clause 12 tries to probe the Government. It would ensure that conditions for residence and reporting were not imposed on someone who claimed asylum or protection under the Human Rights Act 1998 when under 18 and who had been granted leave to remain as a refugee or given humanitarian protection or discretionary leave. Clause 16 gives the Secretary of State power to impose reporting and residence requirements on those with discretionary leave, humanitarian protection and refugee leave. It provides for conditions such as curfews or a requirement to live in a specific location. On Second Reading, the Minister said that he intended initially to apply the measure to unaccompanied asylum-seeking children. The document that the Government published on 28 February repeated that and put it in the context of changes in the regime for unaccompanied asylum-seeking children under the new asylum model, which restricts some of the rights that those children previously received.