UK Borders Bill

My Lords, I thank all noble Lords who have contributed on this important set of proposals with their usual thoughtful observations. I recognise completely that this is a sensitive issue and one which obviously excites all those concerned about the welfare of children. I am entirely at one with the motive behind the amendments, even if I cannot find myself in agreement with them. We must all make sure that we do the best for those that come into our care, and I understand why noble Lords have been so exercised on this issue. Before I go into the detail of the amendments, it is worth responding to the general point made by the noble Lord, Lord Avebury, about the draft code which has been circulated. I answer the question about why the code does not refer to detained children in this way: the code does not make a specific reference because it has been designed to cater for the multiple circumstances and situations where BIA staff come into contact with children. The code states clearly that it will identify those specific situations which will include detention and then issue instructions to ensure that staff are responsive to the needs of children in those particular circumstances. Perhaps I may also make another point regarding the document. In bold and at the top it states: "““This document represents a high-level draft which may be amended before being issued for formal consultation””." So it is at a stage before it is put out for formal consultation. In that context, I should say that we are extraordinarily grateful to the children’s charities—I will not draw attention to individual charities—for their help and assistance in our thinking on this issue. Their knowledge and insights are valuable and inform us on our approach. I am sure that noble Lords who have considered the issues presented by these proposals will share my view that it is a question of means and not just ends. Many measures that have the effect of safeguarding children are already in place and have been so for many years. Noble Lords will be aware of those measures from our debates in Grand Committee. I should like to focus on what the Government are proposing to do next so that we can make things better in the light of an up-to-date appreciation of children and migration issues. Amendment No. 5 seeks to amend Clause 21 so as to broaden the scope of the Border and Immigration Agency’s duty in relation to children, bringing it into line with the safeguarding duty contained in Section 11 of the Children Act 2004. It also seeks to impose the same broad duty on contractors providing services on behalf of the Border and Immigration Agency. A number of noble Lords made reference to that. I ought to make it clear at this point that we sympathise with the part of the amendment which seeks to secure that contractors providing services on behalf of the agency should have the same responsibilities in respect of children, but not with the nature of the responsibility proposed. I ought also to make clear that this is a point I shall return to when we come to debate Amendments Nos. 23 and 24 to Clause 21, which I hope is of assistance. On the other hand, Amendment No. 16 seeks simply to make the Border and Immigration Agency subject to Section 11. Essentially, admirable though the Section 11 duty is at the level at which it has been introduced, it creates uncertainty as to how it can and should be applied in the immigration context. That uncertainty is undesirable both for applicants and for those who have to implement legislation. That is why the Government believe that a code of practice both standardises what the duty actually is and makes more transparent our commitment to safeguarding children. It is the most appropriate means by which to deal with the issue. Before I come to the code, I would like to make some points about the amendments. First, it is inaccurate to insist that these amendments are necessary to avoid children being left unprotected. The legislation that currently provides protection for children operates regardless of a child’s immigration status. Secondly, we do not think it 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 to undertake that role so as to enable those children to have optimum life chances and enter adulthood successfully, as the statutory guidance accompanying the duty requires. While the duty is not intended to interfere with the performance of the agency’s primary functions, we are very concerned that the breadth of the duty would invite challenges to our decisions on the basis that they do not promote a child’s welfare. Experience shows that many of these challenges would be made simply as a means of frustrating the implementation of quite legitimate immigration control. They could add to the already frequent attempts to delay removal or hinder other aspects of immigration control functions. For those reasons, I must resist the amendments. However, it may be helpful to explain in more detail why the agency cannot take on a wider welfare role such as that envisaged by Section 11. The primary function of the Border and Immigration Agency is to protect UK borders by implementing and enforcing immigration legislation. This involves determining whether someone in the UK is lawfully here or not. Durable solutions for a child’s future can be made by the agencies principally charged with those responsibilities. In reaching that determination, the Border and Immigration Agency must ensure that it looks after children quite properly. However, it cannot realistically assume a responsibility for promoting the welfare of children in the longer term, given that its primary purpose is to ascertain whether the child’s presence in the UK is lawful and to take appropriate action on that basis. 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 this means, and the code of practice that we are proposing will do this in detail. The proposed code of practice commits the Border and Immigration Agency to doing the following things. We will identify specifically those situations where we come into contact with children, whether face to face or on paper, and we will ensure that we handle those situations in ways responsive to the needs of those children. We will keep staff informed of the professionally accepted signs and indicators that help to identify when a child may be at risk of harm and give them the confidence to take action. We will take action where relevant by referring a child to the appropriate agency—that with the principal statutory responsibility, usually the local authority. While we cannot anticipate fully the areas of work of the independent Border and Immigration Agency inspectorate, we can and will encourage the chief inspector to look at the reasons for detaining families with children, the way in which they contribute to the outcome of the immigration process, and the nature and quality of the recorded information about detention. We will consider and evaluate alternatives to detention. We will require all staff to undertake an introductory training course in how to identify and be responsive to children and their needs. That training has of course been prepared with input from groups outside the agency, and is ready to be introduced. We will identify and train a children’s adviser in each business unit to act as a point of reference when an issue involving a child arises, such as whether to refer to another agency or not. We see the creation of this role as an important part of embedding a change of culture and approach to children within the agency. We will increase our participation in the local safeguarding children’s boards and will develop and keep up to date a protocol with the family courts on how to approach cases where a child subject to immigration control is likely to be made the subject of a care order. We will take part in appropriate information sharing with other agencies that have responsibilities for safeguarding children. The code is a significant programme of work for the agency where the aim is to encourage staff to realise how they can become more responsive to the needs of children. It also requires staff to be vigilant and to make every effort in their work to keep children safe from harm. Crucially, this will not be simply a token document. There will be instructions to staff as a result of the code and these are being developed with input from outside organisations with relevant experience. Staff will be expected to follow this code or to have clear reasons for not doing so. The code will be a detailed document and in drafting we will continue to consult widely. We will also continue to work with interested parties such as the Association of Directors of Children’s Services, the new Department for Children, Families and Schools, the Children’s Commissioner, officials in the devolved administrations as well as the Children’s Society and Barnardo’s, which has already expressed its willingness to work with us on the code’s development. In fact the Children’s Commissioner said the following in relation to the code: "““I think I expressed my appreciation when we met in September that the Government has moved significantly and is travelling in the right direction by introducing a Code of Practice to place a safeguarding duty on immigration officials. I commend the fact that you have taken this initiative””." So that is our approach. I argue that it is thorough, comprehensive and in the long-term interests of children who, for one reason or another, come into contact with the Border and Immigration Agency. Perhaps I should say in answer to the noble Lord, Lord Avebury, that, in addition, the code aims to establish in Part 1 principles that staff in the BIA must follow. The code will be supported by a series of strong instructions to staff, eight of which are in draft, including one pertaining in particular to children detained. So that is our approach to these matters. I understand the sensitivity of the issues involved but, having heard what I have said, I would urge noble Lords to withdraw the amendment.