My Lords, Amendment 114 in this group is in my name. I am grateful for the support of other noble Lords. The amendment seeks to ensure that a best interests assessment is obtained for any child separated from its parents as a result of an immigration appeal. It is not so very long ago, I remember, that in the light of failures in child protection a policy initiative was given the title Every Child Matters. Every child does matter, without exception.
Under Clause 59, the Secretary of State will have the power to remove the ability of a person to remain in the UK when appealing against an immigration decision. This simply extends provisions already contained in the Immigration Act 2014 which apply only to foreign national offenders. However, no analysis on the impact of children being separated from their parents as a result of the Immigration Act 2014 has been undertaken. That is the first thing to stress, yet the new Bill extends these provisions to all appeals relating to immigration claims, including those involving accompanied and unaccompanied children.
Recent research by the Children’s Commissioner has shown the serious long-term impact on a child of separation from a parent: it can undermine their developmental, behavioural and emotional well-being. There is a significant delay, currently of up to a year, in immigration appeals being listed so this separation from family or home in the event of certification would have significant consequences for any child. A year may seem to pass quickly when you reach the seniority of many of us in your Lordships’ House but for a child aged six or seven, a year’s development is very significant. In Committee, the Minister expressed the hope that in future,
“appeal processes in simple cases will not exceed six months and even in complex cases will not exceed 12 months ”.—[Official Report, 3/2/16; col. 1813.]
But there is no guarantee that this will be the case and even 12 months can be too long for a child removed from parents or school, or for unaccompanied young people who find themselves, as they are likely to do, without a support network in their country of origin—where they may have no family left at all.
Government Amendment 145 draws attention to the duty of the Home Secretary under Section 55 of the Borders, Citizenship and Immigration Act 2009,
“to safeguard and promote the welfare of children”,
with respect to immigration, asylum and enforcement functions. However, the experience of organisations such as the Refugee Children’s Consortium is that children’s best interests are not systematically and comprehensively assessed within immigration decision-making. No one has ever relied on this duty of the Home Secretary in any case and there is no clear means of implementing it. It seems no more than a pious aspiration. I am in favour of pious aspirations and the more pious, the better, but they need some means of implementation and checking. There needs to be independent oversight of the duty on the Home Office to ensure that the best interests of any child are adequately considered before any decision is made to certify any claim for out-of-country appeals. That is what Amendment 114 offers so straightforwardly.
We need to see all this within the context of cuts to legal aid. The Government have removed all legal aid for immigration cases, undermining the ability of children and families to put forward the necessary evidence and legal arguments to have their cases fairly determined. What is the result? The Home Office will be making decisions on poorly-prepared cases with inadequate evidence because children and families will not have had the benefit of legal advice. It means that the ability to appeal against decisions by the Home Office has never been more important.
We saw a stark example of the current weaknesses of Home Office decision-making just last April. The Court of Appeal upheld the decision by the Upper Tribunal requiring the Home Office to return a five year-old child to the UK with his mother after failing to consider properly his best interests before they were removed to Nigeria. The woman, who was undocumented, had claimed to be in the UK since 1991. She applied for asylum in 2010, saying that she feared destitution and discrimination as a single mother in Nigeria with no immediate family. Her asylum claim had been repeatedly rejected. At one point, she was admitted to a psychiatric unit with depression. Her son was put into foster care as she battled against attempts to send them both back to Nigeria. The foster carers who looked after the boy remained close to him. When the mother and child were removed from the UK, those foster carers paid for their accommodation and healthcare in Nigeria from their own savings because they were so concerned about what happened to them both. The judge ruled:
“In not taking into account the implications of”,
the mother’s “mental health” for the child,
“and the risk of that degenerating in the Nigerian context and the likely consequences of removal, the Secretary of State failed to have regard to”,
the child’s,
“best interests as a primary consideration”.
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Such disregard for the best interests of a child could easily become even more commonplace as a result of the passage of this legislation. What was the impact of the already-existing duty of the Home Secretary to have concern for the best interests of the child in this case? Given that duty, what is the significance of government Amendment 145? What will be the means of giving it effect? Surely we can look at how to give this government amendment more substance between now and Third Reading, if for any reason Amendment 114 is not acceptable. How do we give each child a place and a voice within this process, as well as making sure that the details of any decision will be clearly set out? Surely, every child does still matter.