As has been said, the Government have an amendment in this group regarding the welfare of children, which would state that the Secretary of State and any other person, as set out in Section 55 of the Borders, Citizenship and Immigration Act 2009, is subject to a duty regarding the welfare of children. The Government have put this amendment down following the debate on the welfare of children under the “deport first, appeal later” clauses in this Bill in Committee. The Government have repeatedly referred to the extension of the “deport first, appeal later” issue as a manifesto commitment. The amendment tabled by the right revered prelate the Bishop of Norwich states that, before a decision is taken to certify a
human rights claim, the Secretary of State must obtain an individual best interests assessment in relation to any child whose human rights may be breached by the decision to certify with the assessment being carried out by a suitably qualified and independent professional.
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The Government’s argument against Amendment 114 appears to be going to be—they have not yet put forward their case—that it is not necessary because the Secretary of State already has a statutory duty to take into account the welfare of a child under Section 55 of the Borders, Citizenship and Immigration Act 2009, a reference to which will now appear in the Bill. The issue that has been raised by the noble Baroness, Lady Hamwee, is to ask what exactly the duty is under Section 55 of that Act regarding the welfare of children. Is it a proactive duty, or is it a reactive duty? We have heard in the brief debate already this evening of cases in which the best interests of the child do not seem to have been taken into account by the Home Office through whatever the procedures are that it applies. I would be very grateful when the Government respond for it to be spelled out what the duty is under Section 55 of the 2009 Act. What does it actually require the Secretary of State to do, and what does it not require the Secretary of State to do? I ask that looking at what the Government said on this issue in Committee. Referring to the amendment that was down at the time, the Minister said:
“The amendment has been tabled to ensure that the best interests of any affected child are considered before a claim is certified so that an appeal must be exercised from overseas. One can quite understand what lies behind the desire for such an amendment but, however well intentioned, I suggest that it is unnecessary. It is unnecessary”—
that is the Government’s word—
“in law because Section 55 of the Borders, Citizenship and Immigration Act 2009, which the noble Baroness, Lady Hamwee, referred to, already imposes a clear statutory duty to consider the best interests of any child affected by a decision to certify”.
The Government then went on to say:
“It is unnecessary in practice because whenever a person concerned makes the Secretary of State aware that a child may be affected by her decision, the best interests of that child are a primary consideration in deciding whether to certify”.—[Official Report, 3/2/16; col. 1808.]
The keys words are,
“makes the Secretary of State aware”.
It does not say that the Secretary of State has a duty to find out. That is why I am asking the Government, when they respond, to say exactly what that duty under the 2009 Act—which they say makes Amendment 114 unnecessary—requires the Secretary of State to do. On the basis of what the Government said in Committee, it does not appear that they think that the Secretary of State has any responsibility for actually finding out the facts herself. The wording they used was:
“It is unnecessary … because whenever a person concerned makes the Secretary of State aware”.
Later on in that same debate, the noble and learned Lord, Lord Keen of Elie, said:
“Today the Secretary of State takes careful and proportionate views regarding the interests of children. Whether it is necessary to engage external agencies with regard to the interests of the
child in a particular case will depend on the facts of that case. For example, if the Secretary of State is made aware that a social services engagement exists with a child, she will make further inquiries of the social services”.—[Official Report, 3/2/16; col. 1808.]
Once again, it is a question of the Secretary of State being made aware of the circumstances. That is why I come back to this point. I would like it spelled out what the Government think that duty is under Section 55 of the 2009 Act. It appears that the Government do not think that the Secretary of State, in making a decision, has any duty under Section 55 to find out what the situation is. Do not those advising the Secretary of State find out whether the best interests of a child are likely to be affected by a decision of the Secretary of State? From what the Minister said in Committee—and, frankly, from what has been said in the debate this evening—it appears that nobody proactively seeks to find out what the likely impact of a decision that the Secretary of State is going to take might be on a child.
If Amendment 114 is not necessary, can the Minister say whether there are any aspects called for under the terms of Amendment 114 which the Secretary of State would not undertake as part of her duty regarding the welfare of a child under Section 55 of the Borders, Citizenship and Immigration Act 2009, and, if so, what those aspects are? I would be extremely grateful if the Government would give some very clear answers to my questions.