In moving Amendment 31, I will also speak to Amendment 32 in this group. The amendment takes us to Clause 12, which deals with the place from which an appeal may be made. The first amendment is particularly concerned with children.
Clause 12(3) proposes that “foreign criminals”, as defined, and people whom the Home Secretary deems not to be conducive to the public good can be deported first and appeal after unless that would cause “serious irreversible harm”. The concern raised by the amendment relates to the consequences for child welfare, something which this House discussed on Monday in the context of detention and which we have so often discussed.
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I am concerned about the needs of children who could be split from a parent by that parent’s deportation. We have often referred to the UN Convention on the Rights of the Child, which says that,
“a child shall not be separated from his or her parents … except when competent authorities subject to judicial review determine”—
I accept there is the right for judicial review—
“in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. …In any proceedings pursuant to … the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known”.
I do not think it can be denied that there will be problems in taking matters forward from abroad but, even where parents are able to bring an appeal from abroad, there will have been disruption and quite possibly damage to the child from the separation, as they will either have accompanied the parent or have been separated. Where there are two parents, which is not invariably the case, the child will be separated from one of them.
A number of noble Lords will be familiar with the work of the organisation Bail for Immigration Detainees and its report Fractured Childhoods on the cases of more than 100 parents who were separated from their children by immigration detention. The concerns about separation of course come up in many contexts, not just immigration, but the impact on a child’s development is one that child psychologists and neurobiologists are increasingly aware of and managing to explain to the rest of us.
Therefore I take this opportunity to ask my noble friend several questions. What assessment have the Government made of the barriers to deportees appealing from abroad? What data might there be on success rates for appellants who appear in court compared to those whose cases are heard in their absence? In particular, in the context of my amendment, have the Government assessed the impact on children who are settled in the UK with one parent if the other is deported for a significant period? What estimate have the Government made of the number of deportees who will lodge judicial reviews and of the costs and delays in concluding cases?
My second amendment, Amendment 32, is a probing amendment on the new Section 94B. Subsection (3) of new Section 94B says:
“The grounds upon which the Secretary of State may certify a claim under subsection (2) include (in particular)”,
and then goes on to spell out the detail. My amendment would replace “include (in particular)” by “are”, which makes clear the basis on which the Secretary of State may certify a claim. My noble friend will understand that this is not because I want to be more restrictive but in order to ask about the circumstances in which deportation would be permitted when a human rights claim is made which the Secretary of State has refused and about which the person is appealing or wishes to appeal.
If the Secretary of State does not consider deportation to be a breach of human rights, in what circumstances could she rationally conclude that it would do “serious irreversible harm” to deport pending an appeal? Is it the case that, where she refuses the human rights application, she will also decide that new Section 94B(2) applies and so the deportation will proceed before an appeal is brought or finally decided?
My noble friend Lord Taylor has written to us quite extensively following the debate at Second Reading and has drawn attention to the “real risk” of the serious irreversible harm test:
“If there were dependent children in the UK and it could be shown that there were exceptional reasons giving rise to a real risk
of serious irreversible harm, the power to certify [i.e. to apply new section 94B] would not be exercised and the criminal could appeal from the UK”.
But that new section is drafted quite restrictively. On its face, it applies only where there is a real risk of such harm to the person facing deportation—it uses the words “that P would not”, where P is the person facing deportation. There has to be a concern, and it is one that I am expressing here, about that person’s child, and indeed there may be other family members who face such harm.
Others will point to and have pointed to the proposed reforms of judicial review which the Government have in train, the difficulty of pursuing judicial review from abroad and, indeed, the undesirability of there being a large number of judicial reviews. I hope that my noble friend can assist on the questions I have asked. There is also an amendment in this group from the noble Baroness, Lady Lister. I beg to move.