UK Borders Bill

moved Amendment No. 13: 13: After Clause 3, insert the following new Clause— ““Immigration Service: welfare of children After section 11(1)(m) of the Children Act 2004 (c. 31) (arrangements to safeguard and promote welfare) insert— ““(n) a regional office of the National Asylum Support Service; (o) the centre manager of an immigration removal centre; (p) the Chief Immigration Officer at a port of entry.”””” The noble Baroness said: I shall speak also to Amendment No. 44. I am grateful to the noble Lord, Lord Avebury, and to the noble Earl, Lord Listowel, for adding their names to Amendment No. 13. I am also grateful to the Refugee Children's Consortium, UNICEF UK and ECPAT for their briefing on this matter. I declare a non-pecuniary interest as a trustee of UNICEF UK. I welcome government Amendment No. 37 as a first step towards resolving the dilemma of how the welfare of children can and must be promoted within the immigration system. The amendment would require the Home Secretary to publish a code of practice on how the Border and Immigration Agency helps to keep children safe from harm and to have regard to the code when carrying out her immigration functions. I note that the code of practice would apply to all parts of the Border and Immigration Agency within the UK—all four nations. However, I have substantial concerns about the government amendment. Clearly, it does not incorporate the Section 11 duty to promote the welfare of children. That makes it a weaker duty than for other children in England and Wales. The Government's new clause does not confer an explicit statutory safeguarding duty for the BIA on the face of the Bill. It states that the Secretary of State shall issue a code of practice to which the agency should have regard when it exercises its functions. That seems weak. However, I hope that the Committee today will agree that the government amendment should be accepted at this stage, but on the basis that we shall need to amend it further at Report to achieve our objective. I say that because an amendment may be made in Grand Committee only if every single Member present agrees to it. The Refugee Children’s Consortium states that it would welcome the government amendment being accepted today as the basis on which we can then work towards the right outcome over the Summer Recess and at Report. I note that the noble Lord, Lord Avebury, has three amendments tabled to the government amendment and I give him my support for those. I believe my amendments, which I still prefer to those of the Government, to be the right solution to how to promote child welfare within the immigration system. I recognise that there is one limitation in my amendment which the Government have overcome by their defective amendment: my amendment does not apply to all four nations. That is something that we shall have to resolve in discussions over the summer. Amendment No. 13 places a duty on relevant agencies providing services to children to have regard to the need to safeguard and promote the welfare of children in discharging their normal functions. The services with primary responsibility for the welfare and support of refugee children and their families, including the Immigration Service, are excluded from the otherwise exhaustive list of those to whom the duty applies in Section 11. I appreciate that the Government have consistently argued that my amendment would restrict the primary function of the Immigration Service. They say that, "““a duty to have regard to the need to safeguard and promote the welfare of children could severely compromise our ability to maintain an effective asylum system and strong immigration control””.—[Official Report, 17/6/04; col. 996.]" That is the way they usually respond and I suspect that the Minister will do precisely the same again today. Of course, I do not dispute that the primary function of the Immigration Service is to ensure effective immigration control, and I never have. But other government agencies also have a separate primary function and they are still included in the duty. That does not have a negative impact on their performance: for example, the chief officer of police is included in the duty at Section 11(1)(h). If the police can be regarded as exercising their proper central functions while having regard to the constraint of Section 11, it is hard to understand why immigration bodies should not be able to fulfil their functions while operating under that same constraint. A duty of care is not contradictory to the primary function; it only qualifies the manner in which it is exercised. As the Explanatory Notes to the 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””." I understand that the Refugee Children's Consortium has taken legal advice which states that Section 11 would not prevent the Home Secretary implementing the removal directions for a child or his or her family and would, at most, just affect the manner in which the removal occurred. That surely should give the Government the opportunity now to give children the protection of Section 11 within the immigration system. I am in no doubt that the Bill should enhance child safety. The Government have recognised that by tabling their own amendment. It is the right time to extend the duty under Section 11 of the Children Act 2004 to those who work within the immigration system, in particular the regional offices of the National Asylum Support Service, the managers of immigration removal centres and the immigration officers at ports of entry to the UK. My proposed new clause would do just that. Amendment No. 44 finds a different solution. The new clause that it proposes would place a duty on the Border and Immigration Agency to take appropriate steps to ensure that while children are in the UK they are safe from harm and their welfare is promoted. The intention of the amendment is to combine aspects of the duty in Section 11 of the Children Act with the Government’s amendment on safeguarding. It was brought forward with the assistance of the Refugee Children’s Consortium, which is trying to assist me in consultations with the Government to find a satisfactory resolution to what at the moment is a disagreement between us. The omission of the Immigration Service from the Section 11 duty is brought into even sharper focus by the legislative proposals before us. The UK Borders Bill seeks to broaden considerably the powers of immigration officers without addressing the safeguarding and accountability frameworks in which they operate. The Minister will be well aware that the Children’s Commissioner for England described the Immigration Service’s omission from Section 11 as a great disappointment. He also said that he believed that the exclusions were already having an impact on those who are subject to the duty and those who are not. I am aware that discussions have taken place between the children’s champion in the Immigration and Nationality Directorate as it was—now the BIA—and the Children’s Commissioner for England about the way in which the BIA could be made subject to Section 11. I hope that the Minister will tell the Committee today that substantial progress has been made in those discussions and that the Government will be prepared to reconsider further the text of their amendment before Report so that it may more properly safeguard the welfare of children. I beg to move.