UK Borders Bill

My Lords, the words of the right reverend Prelate are extremely significant as we start our deliberations and we should bear them very much in mind as we go through the Committee. My noble friend referred to the Joint Committee on Human Rights, of which I am a member. We gave careful consideration to the Bill. We have had helpful correspondence with Ministers, which we greatly appreciated. The committee accepts that increasing border security is a legitimate aim, which may even be required by human rights law. There remain five concerns which the committee is convinced should be addressed in deliberations on this legislation. I would be grateful if my noble friend could deal with them when replying to the debate. First, the wider role envisaged for immigration officers to detain, search and seize seemed to us to be a general policing function, and we believe that it should therefore be subject to the same code of practice as that which applies to the police and that there should be proper training for this. We also believe that the Government have not yet demonstrably established the need for this significant step, and should do so before it is taken. Secondly, in the absence of detailed provisions, it is not in our view possible to assess the compatibility of the proposed biometric registration scheme for non-EEA nationals with the right to respect for private life in Article 8 of the European Convention on Human Rights. The committee is, however, anxious lest it could give rise to de facto racial profiling. Minority ethnic groupings will probably be disproportionately required to prove their immigration status. To be lawful, the Government must therefore ensure that race plays no part in the profiles used to decide the order in which they phase in implementation of the biometric immigration document. Thirdly, the committee believes that a specific time frame should be laid down, within which the Secretary of State must decide whether a deportation order is required, if we are to avoid the likelihood of prolonged post-sentence immigration detention in connection with the provisions for deportation of foreigners convicted of criminal offences. Fourthly, while the committee welcomes the provision for asylum seekers to receive support pending final determination of their claim, it believes that further provisions are essential to ensure that asylum seekers, including asylum-seeking children, are not subjected to inhumane and degrading treatment but are treated with common humanity. Fifthly, the committee welcomes the extension of the scope of human trafficking offences, but is convinced that further measures are necessary to improve detection of trafficking victims. It is frankly disappointing that there is no clear timetable for implementing the Government’s action plan on trafficking. As I say, it would be helpful if my noble friend could refer to these points when replying. I want to speak specifically about how this Bill affects children. Earlier this year, the Joint Committee on Human Rights conducted an inquiry into the treatment of asylum seekers. I was repeatedly struck during that inquiry by the way children are treated in the asylum process and, too often, by the sheer invisibility of their needs. I am convinced that we all need to take children’s welfare at least as seriously as immigration control, and I am concerned about measures in the Bill and elsewhere that fail to do this. Within the context of necessary security measures, we must surely protect the needs of the vulnerable. Who is more vulnerable than a child seeking asylum? Surely this goes to the heart of what we are trying to defend and preserve in our society. Much is changing in policy towards these children and in the wider asylum system. These changes are largely taking place outside Parliament, and we must consider them if we are to understand the real impact of this legislation. The Government have just finished consulting on Planning Better Outcomes and Support for Unaccompanied Asylum Seeking Children, an overhaul of how asylum-seeking children are treated in the United Kingdom. Yet before the consultation had closed, they introduced measures designed to enact part of the proposed new system through Clause 16. Quite apart from the doubt that that inevitably sheds on the integrity of the consultation process, I share the Refugee Children’s Consortium’s belief—and I note that the Government have, at least indirectly, acknowledged this—that making children report to immigration officers for potentially long periods is harmful and quite wrong given the corporate parenting duty that social services have towards these children. Another important and related development happening outside this House is the new asylum model, under which children are now given leave for a shorter period; that is to the age of 17 and a half, instead of 18. This is to ensure that their application for asylum is finally decided by the time they are 18. This has caused a problem with existing legislation, particularly Section 83 of the Nationality, Immigration and Asylum Act 2002. The effect of Section 83 is that people granted less than one year’s leave are denied an appeal against a decision to refuse asylum. It applies almost exclusively to people granted discretionary leave and, within that, to unaccompanied children. Half of all unaccompanied children are aged 16 or 17 on arrival and so are likely to be given less than a year’s leave under the new arrangements. At current arrival rates, that means that around 1,500 more children a year may be denied an appeal against a decision to refuse asylum while they are still children. I do not think that the Government intended to deny such large numbers of children an appeal against the decision to refuse asylum, given the efforts that are being made to ensure finality to the asylum claim as soon as possible. I therefore hope that the Government will welcome an amendment to Section 83 to restore the right of appeal to anyone granted leave of any length on refusal of asylum. I am also concerned about Clause 32. It lists a number of exceptions to the automatic deportation of foreign offenders as outlined in Clause 31. One of those exceptions includes foreign nationals who were under 18 when they were convicted of an offence that would ordinarily result in automatic deportation. By making the date of conviction rather than the date on which the offence was committed the cut-off point for determining the age of the offender, we could be legislating to deport automatically those who were minors when they committed the offence. Not only does that contravene the UN Convention on the Rights of the Child, but it is inconsistent with previous legislation and could result in inconsistency of treatment between offenders. The Joint Committee’s inquiry concluded that overall the asylum process lacked somebody to protect and argue for children’s welfare before decisions were made. There is no person or mechanism built into the process to uphold their rights. We asked for a statutory guardian to prevent children being treated badly—a good example of where that happens is in the decision to detain children. Article 37 of the UN Convention on the Rights of the Child states: "““No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time””." The UK is clearly deviating from that. In 2005, which is the last full year for which we have official statistics, 1,855 children were detained with their families, and 95 of them were detained for more than a month. The Children’s Society reports the case of a family who were detained in Yarl’s Wood for several months. One of the children in the family, who was eight years old at the time, had learning difficulties and was distressed to see his mother disintegrate while in detention until she attempted to take her own life. The child missed several medical appointments while he was in the centre, appointments which were essential to have a prosthetic limb fitted, and eventually contracted a bone infection that made it impossible for the limb to be fitted. It is impossible to overestimate the impact of this experience on an eight year-old child. In the light of cases such as that the Joint Committee concluded that children’s welfare cannot be upheld in detention and that such detention should therefore cease. Indeed, detention breaches the UN Convention on the Rights of the Child and Article 5 of the European Convention on Human Rights. I shall therefore be prepared to support amendments seeking to end the detention of children. In no small way, the application of Section 11 of the Children Act to the Immigration Service would tackle this lack of thought about children’s welfare that permeates the system. The UN Convention on the Rights of the Child is designed to ensure that there is someone in the middle of any process involving a child who is advocating the child's well-being and accepting that their well-being is paramount. This is about creating a culture which respects children’s rights and embedding that culture in the asylum process. We need to use the law to ensure that there is a framework which underpins a cultural shift in how we treat these children. The Government have indicated that they plan to draw up a safeguarding strategy for children, but children's organisations believe that is not adequate to promote a cultural shift which is, above all, required. The Refugee Children's Consortium powerfully argues that only an equal duty on immigration agencies in domestic legislation would begin to ensure children's safety and welfare. Extending Section 11 of the Children Act would be a very good start to establish this cultural shift. But, arguably, we need to go further. Ultimately, I believe that this debate goes to the heart of what sort of society we want to be and whether we believe that when we introduce tougher immigration legislation we must also protect the child in the middle of that process. In the name of civilised values of course we must. It should be an essential imperative in everything that we do. To meet that commitment the Government will have to remove their reservation to the UN Convention on the Rights of the Child. The reservation I am sure is against the spirit of the convention. Article 2 states that rights should be applied, "““without discrimination of any kind””," and Article 22 states that refugees should have the same rights as other children. These rights are not being applied to children in the asylum process. Children’s organisations also believe that the reservation is responsible for creating a two-tier system for children and prevents child asylum seekers being regarded as children like any others. This Bill represents a good opportunity to begin to sort this out. Indeed, I thought my noble friend made some very encouraging remarks in this respect when introducing the Bill. I welcome that. I urge the Government to act on the measures I have tried to describe and to ensure that children's well-being is always the primary consideration in how they are treated.