My Lords, I rise to speak to Amendment 21, supported by the noble Lord, Lord Pannick, and now, I believe, by the noble Lord, Lord Roberts, and perhaps in spirit by the right reverend Prelate the Bishop of Leicester.
First, however, I welcome Amendment 58 in the names of the noble Earl, Lord Listowel, and the noble Lord, Lord Taylor of Holbeach. This addresses one of the concerns raised by the Joint Committee on Human Rights, of which I am a member, as to how the Bill’s provisions were to be read alongside the Section 55 duty to safeguard and promote the welfare of children. But, sadly, as my noble friend has already said, it does not meet our related concern that Clause 18 should make explicit that the best interests of children must be taken into account as a primary consideration. I would be grateful if the Minister could explain on the record the implications of Amendment 58 for Clause 18, building on what the noble Lord, Lord Taylor, said earlier. As it is, I am still perplexed as to why the Government refuse to accept the best interests amendment, given that the Minister said very clearly in Committee:
“We believe that the children’s best interests must be a primary consideration”.—[Official Report, 5/3/14; col. 1384.]
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I will not reprise those arguments today. For that reason, while I express my support for Amendments 15, 16 and 20, I will not speak to them. Instead, I want to focus on the question of the definition of a “qualifying child”, which I touched on in Committee but which was not the subject of my amendment at that stage. At that point, I was questioning the compatibility of giving primary consideration to the best interests of the child with the very notion of a non-qualifying child. I would still question that, but in the spirit of compromise I tabled a more modest amendment aimed simply at broadening the definition of a qualifying child. The more I thought about it, the more it seemed to me that the Government were unable to offer a convincing justification for why the definition of a qualifying child should be limited to a child who has,
“lived in the United Kingdom for a continuous period of seven years or more”.
Of course, that excludes any child aged under seven. I will explain in a moment why my amendment would substitute the age of four for that of seven.
The definition of a qualifying child is bound up in the public interest considerations applicable where a court or tribunal is required to decide whether a
decision under the Immigration Act breaches a person’s right to respect for private and family life under Article 8. The Bill provides:
“In the case of a person who is not liable to deportation, the public interest does not require the person’s removal where … the person has a genuine and subsisting parental relationship with a qualifying child, and … it would not be reasonable to expect the child to leave the United Kingdom”.
I emphasise that “genuine and subsisting parental relationship”. This is not an invitation for someone to exploit a relationship with a child with whom they do not have a genuine, ongoing parental relationship. Of course, there is also the reasonableness test to be met, which I understand had been used to refuse many families under the 2012 Immigration Rules.
In response to questioning from Julian Huppert MP in the Public Bill Committee, the then Minister for Immigration explained the reasoning—if you can call it that—behind the use of seven years as the qualifying threshold. He said:
“It is not a number that we simply invented for the Bill. It is based on a previous seven-year concession for children, known as DP5/96, which was a concession against deportation where children had accumulated seven years of continuous residence. It was withdrawn in December 2008 in favour of a case-by-case approach applying article 8. However, as we made clear in the debate on the rules, that left it to the courts to develop the policy on what article 8 required and led to uncertainty and inconsistency. We want to redress the balance, and our starting point is that where a child has been in the UK for seven years, that has significant weight when considering article 8”.
He continued:
“In EA (Nigeria) in 2011, the court said that, in the case of very young children—from birth to age 4—the child is primarily focused on themselves and their parents or carers. It said that very young children do not typically form any deep or strong friendships outside the family, such as will happen as the child grows up and begins to develop more independence. We have acknowledged that, if a child has reached the age of seven, it will have moved beyond simply having his or her needs met by the parents. The child will be part of the education system and will be developing social networks and connections beyond the parents and the home. However, a child who has not spent seven years in the UK, either will be relatively young and able to adapt, or, if they are older, will be likely to have spent their earlier years in their country of origin or another country.”—[Official Report, Commons, Immigration Bill Committee, 5/11/13; cols. 216-17.]
The argument hinged more on the age at which a child develops significant relationships outside the home than on the length of time in the UK as such. The noble and learned Lord repeated this explanation in Committee. He went on to say that,
“the important point that we are seeking to make here is that it is for Parliament to indicate what it believes the age of a qualifying child should be. We are saying that in our judgment it should be seven, for the reasons I have articulated”.—[Official Report, 5/3/14; col. 1383.]
With due respect to the noble and learned Lord, I have not heard one good reason for the age of seven being used. I have heard of a previous concession which used the age of seven without a real explanation of what it was based on, and I have heard about a court case which explicitly referred to birth to the age of four as being the period when the child is focused primarily on themselves and their parents or carers—hence, the substitution of “four” for “seven” in this amendment.
Another reason put forward by the Minister is that children over the age of seven would be part of the educational system and may be developing social networks and connections beyond their parents and home. But children join the education system at the age of five in this country. In practice, most join it earlier through nursery education and, even if not in formal nursery education, they develop relationships with other children and adults through childcare settings of various kinds.
In Committee, I spoke of my own deep personal grief when, as a young only child, I lost my best friend who lived two doors down because her family moved away from Manchester where I grew up. As a good social scientist, I realised that a sample of one may not be persuasive, even though I saw many noble Lords nod their heads in recognition. Perhaps they were remembering their own personal experiences or thinking about the experiences of their children or grandchildren.
Naturally, I have not been able to do a systematic evidence review, but with help from outside colleagues, to whom I am grateful, I have been able to find some relevant articles. A study into developmental psychology confirmed my own experience that when children have a friend who moves away they can suffer even as pre-schoolers. Let us think how much greater the effect is on children if they are torn away not just from a single childhood friend but from the whole community that they know.
The authors of an article published by the Child Study Center state:
“Early in life children begin to interact with children outside the family—in child care settings, play groups, and preschool programs. The friendships children have with each other are different than those they have with parents and relatives. Family relationships provide an ease, a closeness, a deep sense of intimacy. But they don’t substitute for other relationships. Starting young and continuing through adulthood, friendships are among the most important activities of life … Friendships are important in helping children develop emotionally and socially … The solace and support of friends help children cope with troubling times and through transition times … Friendships are not just a luxury; they are a necessity for healthy psychological development”.
I could quote from more such learned articles but, given the time, I will spare your Lordships. My point is that even young children under the age of seven develop important attachments outside the immediate family, which should be reflected in the definition of a “qualifying child” when considering the question of deportation and the child’s best interests.
In the letter from the Minister, the argument is also made that,
“if a child’s presence in the UK entitled them to permanent residence, it would mean we would have to grant settlement to persons coming to work temporarily in the UK with their family”.
I am bemused by this argument because no one is proposing that a child’s presence in the UK should entitle them to permanent residence. If a family were here only temporarily, it is easy to envisage that it would be thought reasonable to expect a qualifying child to return. That said, I would point out that from a child’s perspective—it is a child’s perspective that we should be taking here—four years is a long time and not a temporary interlude. But even taking that into account would not mean an entitlement as such.
At the outset, I welcomed the concession that the Government have made with regard to the welfare of children. I very much hope that they might now feel able to take this small further step. The Minister has emphasised that,
“it is for Parliament to indicate what it believes the age of a qualifying child should be”.—[Official Report, 5/3/14; col. 1383.]
I now invite your Lordships to do just that. I hope that I may have persuaded noble Lords and the Minister that four would be a more appropriate age than seven, using the very arguments that the Government have used to justify seven.