On the 3rd February 2016 the House of Lords considered the Government’s Immigration Bill in committee. The Bishop of Norwich, Rt Revd Graham James, spoke in support of an amendment to clause 34 of the Bill, related to appeals and certification of human rights claims. The Bishop spoke about the need for the new legislation to better identify and protect childrens’ best interests.
The Lord Bishop of Norwich: My Lords, I rise from these Benches to support Amendment 227 in the name of the noble Lord, Lord Rosser, and others.
The briefing note on Clause 34 to which the noble Baroness, Lady Lister, referred is a model of clarity. It was certainly very informative to me. It made clear, as the noble Baroness said, the statutory duty on the Secretary of State,
“to have regard to the need to safeguard and promote the welfare of any child in the UK who … may be affected by any immigration decision”—
that duty is not in doubt—and that,
“the best interests of the child are a primary consideration”.
While I understand that a primary consideration may not be the only one, I do not understand how a primary consideration can be set aside even if it is in some way qualified. If it is trumped by other factors, it does not seem to be a primary consideration. So there must be a risk that Clause 34 unamended could undermine the Secretary of State’s statutory duty.
I do not doubt the Minister’s and the Government’s best intentions here, but there is widespread concern among organisations such as the Children’s Society, as the noble Lord, Lord Alton, said, which deal with vulnerable children on a daily basis, not least about the Home Office’s capacity to cope with an unamended Clause 34. Without an adequate process to determine the child’s best interests,
“children could be returned to countries and circumstances where they may be at risk of serious harm including sexual abuse, neglect … violence, forced marriage”,
and so on. There is plenty of research to indicate the way in which separation from a parent when vulnerable causes long-term harm to a child’s developmental and emotional well-being. We should not be making such separations more commonplace.
The Home Office briefing argues that appeals from abroad have been effective and fair but, as we have heard, the cuts in legal aid for immigration cases are bound to undermine the capacity of families to put forward evidence, and the danger of not knowing the facts in an appeal must surely grow.
I have been talking generally about the impact of all this, but of course it will always be experienced in particular. An example given by the Children’s Society vividly illustrates the risks. A woman came to the UK 16 years ago to escape forced marriage. After an agent stole her documents, she lived under the radar and now has three children aged 11, seven and two. She received help from the Coram Children’s Legal Centre two years ago—pro bono—to make an application for leave to remain on Article 8 grounds. It was refused, largely because it was said that the family could return to the woman’s country of origin. She appealed and had to wait more than a year for the appeal to be heard, apparently because of a “shortage of judiciary”. The children speak only English; the older two are doing well at school and the eldest child, I understand, is now eligible to register as British.
Under the Bill’s provisions, this woman and her family could have been removed from the UK for more than a year while waiting for her appeal. The children would then have lived in a small African village with their estranged maternal grandmother, with whom they do not have a common language. Their schooling would have been interrupted, since there is no teaching in English locally. The youngest child would have been at risk of female genital mutilation in a place with limited health services. The removal of the eldest child from Britain, the only country he has ever known, would have made him ineligible to register as British since it would have happened just before his 10th birthday.
I want to believe that this family would have benefited from a Home Office caseworker’s laborious and careful sifting of all that evidence, resulting in a recommendation that the family should stay here. But how can this be guaranteed without some amendment of Clause 34? We need full and proper scrutiny before we deport such families or children. I hope that the Minister will offer us some comfort that these points have been heard.
The Advocate-General for Scotland (Lord Keen of Elie) (Con): [extract]
..Noble Lords asked whether in some cases we could see the separation of families. The answer is yes, in some cases. The effect on the family will always be considered on a case-by-case basis. The best interests of children in the United Kingdom are a primary consideration in any immigration decision, including the decision whether to certify under the new power. Where an individual has made a claim or seeks to appeal against a determination that they should not remain in the United Kingdom, the family dependent on that individual will of course be affected by that decision; therefore, there are two obvious options. One is that the children remain in the United Kingdom with a parent or carer, or that they depart with the parent or carer in question. Again, there is no question of children having to face serious, irreversible harm in such circumstances. The right reverend Prelate alluded to a case in which a young child might face the dangers of genital mutilation or other risk of sexual violence. In such a case, there would be no grounds for certification; therefore, there would be no basis for saying that the appeal should proceed out of country. Therefore these safeguards are already in place…
…The right reverend Prelate the Bishop of Norwich referred to particular cases. I hope that I have addressed his concerns. If there was such a serious risk to a child as he alluded to, it appears to me that, with respect, the safety net in Clause 34 would apply.
Amendment 227 withdrawn.
(All speeches made during the debate on this amendment can be seen at Parliament.UK)