UK Borders Bill

My Lords, I am grateful to both noble Lords for their contributions. It is getting late and I shall try to keep my comments on the amendment and its purpose brief and to the point. It was regrettable that the noble Lord, Lord Avebury, and I were unable to have the discussion that we had anticipated in Grand Committee. I was certainly available and had made that very clear to officials, and I suspect that it was an unfortunate matter relating to diaries. I am sure that we can continue to discuss these issues in, around and outside our debates and deliberations on the Bill. Equally, I am sure that the noble Lord seeks to be constructive in his amendment by endeavouring to create a means through which the UK can withdraw its reservation to the UN Convention on the Rights of the Child and still remove children who have no legal basis on which to stay in the United Kingdom. The amendment would incorporate the UNCRC into domestic law for the purposes of exercising powers under Section 4(1) of the Immigration Act 1971. It may help if I remind noble Lords that this section deals with decisions to grant reviews or vary leave to remain in the United Kingdom. Under the proposed new clause, immigration officials would be obliged to act in conformity with the UNCRC when making such decisions. The convention is drafted in very general terms—for example, the requirement to make the best interests of the child a primary consideration—and it would be very difficult to establish what that might mean in an immigration context and in the circumstances of a particular child or particular children. A further consequence of the amendment would be to make decisions made under Section 4(1) of the Immigration Act 1971 reviewable in the UK courts on the basis of non-compliance with the terms of the convention. However, these decisions are, in any event, already reviewable under our current laws, so we would simply create a further avenue of review but under much more generalised terms than at present. There is no doubt that that would lead to extra litigation, but we must ask ourselves whether that extra litigation would be likely to lead to anything that cannot be provided for by the laws that we already have in terms of protection and support for children. Our contention is that it would not. This is not how the convention is meant to be applied. It was designed to impose obligations on states to bring children’s rights into national law where they did not exist before. We must also bear in mind that the convention was not drafted in order to have a direct effect on individual cases but to inform states about how they might structure their laws so as to bring children’s legislation and interests into national law. There are still many countries where children do not experience the protection and care that we provide under our own domestic legislation. That is why we signed the convention and why, to this day, we support it. The following countries have entered reservations or declarations in respect of immigration and nationality issues: Andorra, Belgium, Germany, Lichtenstein, Monaco, the Netherlands and Switzerland. I shall not suggest this evening the precise reasons or the effect of the reservation on matters such as removing children from those countries. These details do not allow for a direct comparison because of the way that the different review mechanisms work in each jurisdiction. However, neither the United Kingdom nor those countries are regarded as having contravened the convention or having been in breach of it. We have ratified the convention and have made a legitimate and understandable qualification to it—not unlike other nation states—yet we are committed to keeping our reservation under review. That does not mean that we are not responding to concerns expressed, including the concerns that the functions of the Immigration Service do not carry with them the same obligations to take account of children’s needs as other agencies’ functions do. For that reason, we have introduced a new duty for the Border and Immigration Agency to have regard to a code of practice to keep children safe from harm while they reside in the United Kingdom. I understand the passion expressed from the Liberal Democrat Benches. It is a passion that in a sense we share because we are clearly seeking to perform our duties and obligations consistent with the convention and the obligations in general terms that it bestows on signatories to it. But it would not be appropriate in the context of this legislation or in our immigration laws to incorporate that in the way that noble Lords from the Liberal Democrat Benches have suggested. I hope that, having heard those arguments, in particular those about reservations, the noble Lord will feel able to withdraw his amendment.