Immigration Bill: Bishop of Norwich moves amendment requiring best interests assessment for refugee children

14.06.12 Bishop of NorwichOn 15th March, the Bishop of Norwich, the Rt Revd Graham James, moved an amenment to the Immigration Bill that would ensure a best interests assessment was undertaken for an child separated from their parents due to an immigration appeal. Lord Keen of Elie responded on behalf of the Government.

Clause 114

Page 54, line 38, at end insert—

“( )     After subsection (3) insert—

“(4)     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, and the assessment shall cover—

(a)   the ascertainable wishes and feelings of the child concerned (considered in the light of his or her age and understanding);

(b)   his or her physical, emotional and educational needs;

(c)   the likely effects, including psychological effects, on him or her of the certification;

(d)   his or her age, sex, background and any characteristics of his or her the assessor considers relevant;

(e)   any harm which he or she is at risk of suffering; and

(f)   how capable the parent not facing removal, and any other person in relation to whom the assessor considers the question to be relevant, is of meeting his or her needs.

(5)     The assessment shall be carried out by a suitably qualified and independent professional.

(6)     Psychological or psychiatric assessments shall be obtained in appropriate cases.

(7)     The results of the assessment shall be recorded in a written plan for the child.””

The Lord Bishop of Norwich: 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”.

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.

Lord Ramsbotham: My Lords, I have added my name to Amendment 114 for two reasons. Proposed new subsections (4) to (6) seem to reflect all the experience of the practitioners on the ground with whom I have been in contact, but I was particularly keen on proposed new subsection (7), because the need for a written plan for the child resonates with the education, health and care plans which the Department of Health and the Department for Education require to be prepared for every child with speech, language and communication needs or special educational needs. So such a plan is already part of the structure for children in the United Kingdom.

I was particularly struck by a visit to a secure children’s home called Orchard Lodge, sadly now closed down, which was then run by Southwark council and provided particular help for traumatised children with mental health problems, many of whom were the very people covered by these amendments. They were immigration and asylum seekers who had suffered extraordinary trauma during the conditions that brought them to this country, and they needed help—but that help needed to be structured, co-ordinated and planned. Therefore, I particularly support the amendment tabled by the right reverend Prelate the Bishop of Norwich and hope very much that, in accepting it, which I hope that the Minister feels able to do, he will reflect on the model for the plans that he calls for.

Baroness Lister of Burtersett: My Lords, I speak very briefly in support of these amendments, which are very much animated by the spirit of Every Child Matters, as the right reverend Prelate says. It reminded me of some of the reports that the Joint Committee on Human Rights published when I was still a member, both on unaccompanied young children and on children’s rights. A theme that kept recurring was how often in government policy immigration concerns trump children’s best interests and rights. All these amendments are attempting to shift that balance back so that children’s best interests and children’s rights take centre stage; it does not say that nothing else matters, but they are given the due that they and children deserve.

Lord Rosser: 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.

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.

Lord Keen of Elie: My Lords, I am obliged to the right reverend Prelate and to the other noble Lords who have spoken in this debate. I begin by observing that the noble Lord, Lord Rosser, has very helpfully advanced matters by answering his own question. He identified what he termed “the key words”, and precisely so. The key words are,

“if the Secretary of State is made aware”,

or where someone,

“makes the Secretary of State aware”;

and, of course, it is largely for a parent or carer to do just that in the circumstances that pertain. Therefore that is where we stand, just as we did in Committee.

Amendment 114 seeks to prescribe the mechanism by which the best interests of a child must be considered by requiring a wide-ranging assessment of a long list of factors—I will not rehearse them all here—in relation to any child whose human rights may be breached by a decision to certify. Many of these factors may indeed be relevant in a particular case and will form part of a best-interests assessment by the Secretary of State. However, the current framework is for this to occur only where relevant to the individual circumstances of the case and not for every listed factor in every case to be considered in a blanket manner.

The amendment would require intrusive and potentially irrelevant investigations, even in cases where the carer or parent, best placed to inform the Secretary of State about the impact on their child, had not provided any information to suggest such an impact. We are concerned that this could have a negative impact on the children it seeks to protect. Indeed, the investigation could put a child in the position of feeling that they were to blame if the claim were certified, notwithstanding their evidence.

The amendment is simply disproportionate. It requires an independent investigation in every case, even though published guidance is clear that, where independent advice is necessary, appropriate and relevant, and it is not provided by the person affected, the Secretary of State can seek it. The amendment would also be unworkable in practice. It would require an assessment of factors which go far beyond the effect of the decision to certify the case and stray into the realms of a full care assessment.

The role of the Secretary of State in these decisions is very different from that of the courts in considering a child’s welfare in, for example, family proceedings under the Children Act, from which it appears to me that the list of proposed factors has been drawn.

The amendment may have unintended adverse consequences. It may allow unco-operative parents to frustrate a consideration of whether to certify by failing to provide information to the assessor. It is therefore, as I observed earlier, wholly disproportionate.

Amendment 114 not moved


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