UK Borders Bill

My Lords, I am grateful to all noble Lords who took part in this debate for the thoughtful and constructive way in which they approached things. The issues that the amendment raises are important. The detention of children is a highly emotive subject and not one that the Government, or anyone else involved in this debate, approach lightly. However, it is regrettably necessary in certain circumstances to detain children, and I welcome this opportunity to set out the Government’s position on the issue. Amendment No. 3 would prevent the detention of children in all circumstances other than where their detention was authorised under Schedule 3 to the 1971 Act in connection with deportation. There are two limited circumstances in which children may be detained under immigration powers: first, and most commonly, as part of a family group whose detention is considered necessary, usually as a prelude to their removal; and secondly, where it is necessary, wholly exceptionally, to detain a child while alternative care arrangements are made, normally just overnight. This requirement is likely to arise in situations where, for example, unaccompanied children are encountered at ports of entry or during enforcement operations and there are no responsible adults in whose care they might immediately be placed. In such cases, it is sometimes necessary to detain children very briefly, usually for a few hours or no more than overnight, until alternative arrangements for their care can be made, either with relatives or social services. Such detention is wholly in the interests of the safety of the children concerned. In the more usual case of families with children, they may be detained in line with our published detention criteria, which are: initially, while identity and basis of claim are established; where there are reasonable grounds to believe that the family will abscond; as part of a fast-track asylum process; or to effect removal. In practice, the detention of families with children is most often used to effect their removal from the United Kingdom, and usually takes place just a few days before removal. It lasts for as short a time as possible and most families are detained for a small number of days prior to their removal. We would naturally far rather that families with no lawful basis of stay in the United Kingdom left voluntarily, but where they do not do so we must take steps to enforce their departure, which requires the support of detention. Where it is necessary to detain a family, we consider that it is generally better for children to stay with their parents. In the past, your Lordships’ House has realistically supported that view. However, we are not complacent about the concerns surrounding the detention of children. I confess that from time to time errors are made, things go wrong and matters are not dealt with properly or appropriately. That is one reason why we have taken the significant step of seeking to place the Border and Immigration Agency’s responsibilities towards children on a statutory footing through the requirement to have regard to a code of practice to keep children safe from harm. As was referred to by the noble Lord, Lord Avebury, a draft of the code has now been made available to noble Lords. I apologise for the late circulation of that document but it is in a process of change and amendment. As noble Lords will no doubt have seen, the code contains specific reference to the arrangements for taking decisions to detain and the provision made for families with children while detained. I remind the House that the Government are responding positively to the calls to explore more alternatives to family detention. The agency has developed arrangements with Migrant Helpline to provide an alternative to detention for families with children, and Members of the House have broadly welcomed that. I can give some more details. The pilot scheme, which will see families housed in a hostel in Kent, is due to begin in November and is scheduled to last for one year. If it proves successful, it will be rolled out nationally. The test will be whether families placed in the hostel take the option of leaving the UK voluntarily. There will be support staff from the voluntary sector and the International Organisation for Migration available to give advice to the families in the pilot on voluntary return packages. If successful, the key benefits of the scheme will be to reduce the number of families needing to be detained, coupled with an increase in the number of families choosing to return home voluntarily. Where detention is necessary we constantly strive to ensure that detained children spend as little time as necessary in detention and that satisfactory arrangements to monitor their welfare are in place. At Yarl’s Wood removal centre this now includes, as one or two noble Lords have mentioned, full-time, on-site professional social work support. Detention of families with children is a regrettable but necessary element in maintaining effective immigration control and a robust but fair asylum system. This proposed new clause is incompatible with both those aims. The noble Lord, Lord Avebury, made the point again today—he wisely made it in Grand Committee—that ““to prohibit detention”” of children, "““entirely would make immigration control impossible and, in the case of arrivals, in many cases it would be manifestly contrary to the interests of the child””.—[Official Report, 23/07/07; col. GC 154.]" That is the Government’s view too. We fully understand the legitimate concerns and unease about the detention of families with children. That is why we are keen to ensure that families are detained only when necessary, that detention operations are conducted intelligently and sensitively, that families are detained for the shortest period necessary, that they are cared for appropriately while detained, and that alternatives to detention are explored. But ultimately we must retain that ability to detain. Amendment No. 4 seeks to place a time limit of seven days on the detention of persons accompanied by dependent children, and would impose a requirement for a social services welfare assessment to be conducted before any lesser period of detention could be authorised. I have made the point many times that we have no wish to detain anyone, least of all families with children, for any longer than is necessary. But individuals and families are detained only for as long as is reasonably necessary to achieve the purpose for which detention was authorised, which is usually in the case of families about to be removed from the United Kingdom. We are keen to ensure that detention lasts for a short period. That is particularly so for families with children. In practice, most families are detained for a small number of days, usually just before their removal. However, we have made plain on many occasions—most recently in the context of discussions surrounding the draft EU returns directive—that we cannot accept a fixed upper time limit to immigration detention, whether for families with children or for single adults. Our position on this issue has remained consistent over a number of years. While we agree with the premise underlying this amendment that families with children should be detained for a short period, and aim to do that in practice, setting a statutory upper time limit would remove the flexibility to detain families for longer periods when necessary. A fixed time limit, which would be out of step with long-standing UK law and policy and go beyond the requirements of ECHR Article 5, would also simply encourage the families concerned to frustrate and delay matters to exploit our inability to detain beyond the seven-day point, and thus secure their release from detention and avoid removal. That is not acceptable. The separate requirement that there should be a ““satisfactory”” social services welfare assessment before any period of detention is authorised is impracticable. It is not clear from the terms of the amendment who is to be assessed, although I assume it is meant to be the dependent child. The detention of families with children is usually a planned exercise which will take into account any welfare issues that might be present, but it will not always be so. Detention may be unplanned and, in such circumstances, it would not be possible to arrange a formal welfare assessment beforehand. In other cases the assessment could well increase the risk of families absconding, or of failing to comply with reporting instructions, if they believe removal to be imminent. More generally, I do not think local social services departments would thank us for imposing this added burden on them. Children detained with their families are given a health-led initial assessment on arrival in detention, and their welfare is monitored routinely thereafter. Welfare concerns about a detained child are brought to the attention of the caseworkers managing that family’s detention, to consider whether continued detention is right. Detention is kept under rigorous and frequent review at successively higher levels within the Border and Immigration Agency and, ultimately, by Ministers in those exceptional cases of detention beyond 28 days. This ensures that any welfare concerns can be taken into account in deciding whether detention should continue. I have made the point many times: the detention of families with children is an important element in maintaining an effective immigration control system and a robust but fair asylum system. As with Amendment No. 3, this proposed new clause would seriously hamper our ability to use detention effectively in relation to families, so would be incompatible with those aims. I well understand the motives and the spirit of generosity in which the amendments have been spoken to but, in terms of the practical application of immigration law and—as I think the noble Lord, Lord Avebury, said—to retain a robust immigration system, we cannot accept them.