UK Borders Bill

moved Amendment No. 11: 11: Before Clause 16, insert the following new Clause— ““Applicability of Convention on the Rights of the Child After section 4(1) of the Immigration Act 1971 (c. 77) (administration of control) insert— ““(1A) In the exercise of their powers under subsection (1) it is unlawful for immigration officers or the Secretary of State to act in a way which is incompatible with the United Nations Convention on the Rights of the Child. (1B) Subsection (1A) does not apply to the making of a deportation order under section 5 (procedure for, and further provisions as to, deportation).”””” The noble Lord said: My Lords, this was one of the issues that I hoped we would be able to discuss with the Minister during the Summer Recess. In the event, we never had that full meeting, although I was available for most of the time. I was around for the whole of August and the first half of September. I regret to say that I received an invitation from the Minister only last week, when I had some family commitments that did not enable me to take it up. We might well have been prepared to modify the amendment to exempt decisions to grant, refuse or vary leave involving a child from the application of the convention, to satisfy the Minister’s argument against the amendment in its present form. We would also have been prepared to add decisions to detain. As the Minister will appreciate from the examples given in Committee and what was said earlier this evening, it is not on the decisions themselves but in the manner in which children subject to the decisions are treated where it is essential that the convention should apply. The separation of children from their parents, particularly from breast-feeding mothers, is inhuman and cannot be an ingredient of any civilised policy of immigration control. As the Minister observed, local authorities, education and healthcare professionals, among others, are charged with the care, protection and welfare of children in this country, irrespective of their immigration status. That includes children being detained or removed. They are all subject to the convention in the exercise of their duties, and there is no practical reason why BIA staff should not have identical obligations, except where they are carrying out specific functions under the immigration Acts which otherwise might be argued are contrary to the best interests of the child. We are not trying to frustrate immigration control, as the Minister unworthily insinuated, but to find a way of applying the convention to the BIA in such a way as not to create an opportunity for judicial review of every decision taken by the agency which affects a child, whether in her own right or as a member of a family. Once he had a chance to think about what had been said, the Minister acknowledged that those were our motives in his letter of 19 July, and I would be grateful if he would put that on the public record now that he has the opportunity this evening. I had asked what the experience was of other countries that had signed the convention without reservation. In the same letter, the Minister said that France, Italy and Spain had done so. There were differences in the way in which the immigration control systems operated in those countries, he added, which, "““account in a significant way for the decisions these countries had made about the Convention””." It cannot be that legal challenges to decisions regarding immigration are not per se possible in the courts of France, Italy and Spain, as one can see from the fact that ECHR immigration cases have arisen in all three of those countries. It may be that an action for a breach of the CRC would be more difficult to set in motion because the convention may not be part of their domestic law. That point was touched on by the Minister in Committee. In an attempt to throw more light on the reasons why neighbouring countries with immigration control systems sharing the same broad objectives as we do came to different conclusions on the convention, I asked ILPA to make some inquiries on the matter, and it very kindly did so. In addition to the three states already mentioned as having signed up in full to the convention, Australia, Austria, Canada, Denmark, Ireland and Sweden managed without any immigration reservations whatever. If the reason that these countries manage without reservations is that their immigration systems operate differently from ours, perhaps we need to take a closer look to see if we can learn something from them. Shortly, the United Kingdom has to report to the Committee on the Rights of the Child on our compliance with the convention. I am sure that it will be interested to read this debate. If the committee finds that we have made no attempt to discover why many states manage to operate their immigration control systems without a reservation like ours, it may not be too pleased. In any case, the committee is bound to ask us why the UK’s reservation could not be narrowed, whereby all acts by the BIA and its officials that are not immediately related to immigration control are covered. For instance, other countries detain minor immigrants and have no difficulty in accepting the convention as applicable to the conditions of their detention, just as we do with children who are given custodial sentences for serious criminal offences. Again, comparison with other European countries might provide us with some ideas on how it could be done. In his letter of 19 July, the Minister said that Belgium, the Netherlands and Germany had reservations, "““that allow them to carry out specific immigration functions””—" a far more limited derogation than ours. Belgium does not mention immigration in its ““interpretative declarations””, but has a reservation only to the non-discrimination provision in Article 2 such that, where justified, aliens may be treated differently from citizens. The Netherlands made a declaration allowing it to impose conditions for admissibility of asylum applications and to refer applications to another country with the primary responsibility for the application. Presumably that is a reference to the Dublin convention to which all European countries are party. Therefore, it would not be necessary to make specific reference to the Dublin convention, because it does not bring us into conflict with the convention any more than is the case in any other European country. We hope that the Minister will take these matters seriously and will reply in terms that will satisfy not only your Lordships this evening, but the UN committee to which the Government are ultimately responsible for the performance of their international obligations on the rights of the child. I beg to move