UK Borders Bill

Again, in general terms, that is a valid point. I take the admonition. Secondly, in response to its suspicions that a child may be at risk of harm, the agency importantly refers the child to the appropriate agency which has a principal statutory responsibility, usually the local authority or the police in an emergency situation. Thirdly, the code will describe the processes and procedures the agency will have which help identify signs that a child may be at risk from harm, and it will describe how a child’s safety will be taken into account in making immigration decisions. In respect of the second point, I should emphasise that joined-up working with welfare agencies is already an important part of the agency’s practice and underpins these referral arrangements. For example, dedicated teams of social workers have been established at Dover and at the asylum screening units in Croydon and Liverpool. Similar teams are soon to be in operation at Gatwick and Heathrow. Another example is the excellent relationships which have been established with the children’s services authority in Bedfordshire. This has seen the development of a much more robust series of arrangements, including the secondment of social workers to Yarl’s Wood to ensure that the welfare of children detained there is properly assessed. I hope that that addresses concerns which were raised earlier. More widely, the Border and Immigration Agency is strengthening its engagement with local safeguarding children boards. The code will also set out the issues relating to the welfare of a child which must be taken into account. In addition to the specific operational instruction, the code will define how Border and Immigration Agency staff who come into regular contact with children in their work are to be trained, and how such staff are safely recruited with appropriate vetting procedures. As I have said, the code will be a detailed document and, in drafting it, we will consult widely. We will also work with important interest groups such as the Association of Directors of Children’s Services, the new Department for Children, Families and Schools, as well as the Children’s Society and Barnardo’s—which have already expressed their willingness to work with us on the development of the code—the Children’s Commissioner and officials in the devolved Administrations. While I consider the government amendment to present the best approach to keeping children safe from harm, I can understand why, at first glance, a Section 11 duty appears to be an attractive option. I have also noted that the noble Lords, Lord Avebury and Lord Roberts, have sought to amend the Government’s well thought out clause to bring it closer to the duty set out in Section 11. I will spend some time explaining why it is not a duty that would work for the Border and Immigration Agency. First, it is said that not extending the Section 11 duty to immigration functions would mean that children are unprotected. We do not agree with that; it is incorrect. Section 11 makes no distinction as to the immigration status of children, so other authorities that have a Section 11 duty remain under that duty regardless of a child’s immigration status—for example, unaccompanied asylum-seeking children who are looked after by local authorities. Secondly, we do not think it is appropriate for the Border and Immigration Agency to have a duty which requires it to have regard to, "““ensuring that children are growing up in circumstances consistent with the provision of safe and effective care and undertaking that role so as to enable those children to have optimum life chances and to enter adulthood successfully””," as the statutory guidance accompanying the duty requires. While the duty is not intended to interfere with the performance of an agency’s primary functions, we are very concerned that the breadth of the duty would beg clarification and invite challenge. The same reasoning applies to the amendments tabled by the noble Lords, Lord Avebury and Lord Roberts. As I indicated, the breadth of the Section 11 duty would invite challenge. Experience shows that many of those challenges would be made simply as a means of frustrating the implementation of legitimate immigration control and without any net benefit to children. We already experience significant problems with judicial review challenges to enforcement action: we receive on average just under 80 each week, and while on average 88 per cent are rejected as having no merit—100 per cent in the cases of the challenges submitted by families in January to April this year—they cause significant delays of several weeks and sometimes of months. This can be extremely upsetting and contrary, perhaps unintentionally, to the welfare of the children involved. Even if the challenges did not prevent the removal of those not entitled to remain in the United Kingdom, they could add to the already frequent attempts to delay removal or affect other aspects of immigration control functions, such the dispersal of asylum seekers. Finally, as I mentioned briefly earlier, there is the added disadvantage that the application of Section 11 extends to England only. We need a provision which we can apply to the whole of the UK. Creating a bespoke duty for the Border and Immigration Agency, tailored to its unique functions, makes better sense. Extending Section 11 to Scotland and Northern Ireland would be complicated, as the provision concerns principally those agencies with responsibilities which are devolved and for which separate safeguarding arrangements are being made. Amendment No. 44, which seeks to impose on the Border and Immigration Agency a duty to ensure that children are, "““safe from harm and their welfare is promoted””," effectively seeks to extend Section 11 of the Children Act 2004 to the Border and Immigration Agency by another means, and for the reasons I have already given for rejecting Section 11, I must resist this amendment. However, it is perhaps helpful to explain in more detail why the Border and Immigration Agency cannot take on a wider welfare role. The primary function of the Border and Immigration Agency is to protect the UK border by implementing immigration legislation. Critically, this involves determining whether children have a right to remain here. It is on the basis of that right that durable solutions for a child’s future can be made by the agencies principally charged with those responsibilities. In reaching that determination, the agency must, of course, ensure that it looks after children properly, but it cannot assume responsibility for promoting the welfare of children in the longer term. It is therefore appropriate to define the Agency’s responsibilities towards children in terms of keeping them safe from harm. It is important to be clear what that means, which ultimately the code will make clear in detail. Keeping children safe from harm means keeping them safe from ill-treatment or from the impairment of their health and development. We have chosen this following close consultation with the Department for Education and Science, and it derives from Section 31(9) of the Children Act 1989, in which ““development”” means physical, intellectual, emotional, social or behavioural development; ““health”” means physical or mental health; and ““ill treatment”” includes sexual abuse and forms of ill treatment which are not physical. The Border and Immigration Agency will not be able to identify all cases of harm because of its limited contact with children, but the code will make clear what signs of harm agency staff could reasonably detect and the consideration it would be required to give when a child is identified as being potentially at risk. I appreciate that Amendments Nos. 38 and 40 have not been moved, but I shall deal with them in turn.