Illegal Migration Bill

Baroness Brinton Excerpts

Committee stage
Monday 12th June 2023 Lords Chamber

If the Government wanted to accommodate some of the concerns raised in your Lordships’ Committee over the past few days, this would be the perfect item for my noble friend to accommodate. It would have no detrimental effect on the operation of the Bill, it would strengthen notions of British citizenship as something valuable, enduring and an entitlement, and it would please many noble Lords in the Committee.

[Baroness Brinton (LD)]

My Lords, I have tabled Amendment 98I on the status of Hong Kongers with British national (overseas) status. I am grateful to the noble Lord, Lord Alton, who cannot be in his place this evening, the right reverend Prelate the Bishop of St Albans —I think the right reverend Prelate the Bishop of Durham may be deputising for him—and the noble Baroness, Lady Kennedy, for signing this amendment. I particularly thank the Hong Kongers who have talked to us, Amnesty International and the Project for the Registration of Children as British Citizens for their assistance. In the spirit of co-operation, I wrote to the Minister last week setting out the problem that many BNO passport holders face to give him advanced notice.

The noble Lord, Lord Moylan, talked about the amendments that he and the noble Baroness, Lady Lister, have tabled as focusing right down. I am going even further down to one highly specific group where a problem has emerged which seems to breach the British Nationality Act. I hope to be proved wrong and that the Minister can give us some assurances, but the experience of these BNO nationals who have had children born in the UK recently, most of whom are under five years old, is that they are being told by government officials and staff that their children must apply to Chinese diplomatic missions for Chinese travel documents as they are not entitled to any other form of travel document provided in the UK because their parents are not yet full British citizens, even though they are BNO nationals who are waiting to complete the necessary time before applying for settled status and thereafter, as is their right under the law, becoming full UK citizens. Even if that were not the case—if for any reason their parents did not go for that—these children, because they are born here, would be entitled to apply for UK citizenship after being here for 10 years. One official told a Hong Konger parent that their child would have to take the UK citizenship test.

That is clearly mad. Whatever Border Force and Home Office immigration officials are saying, it is utterly confusing. This is a small community who relied on the United Kingdom, which ran their country for many years and allowed the status of BNO to signify that we accepted that status, with everything else that follows from it, including the right to settled status and, in the slightly longer term, the right to UK citizenship.

To be clear, Section 1(3) of the British Nationality Act provides the child with the right to be registered as a British citizen if either parent becomes settled or a British citizen. To be generous, perhaps this is confusion among officials about the gap before the parents are recognised as being settled. However, that application must be made before the child turns 18. Section 1(4) provides the child with the right to be registered as a British citizen if the child remains resident in the UK until the age of 10. Some absences during those first 10 years are permitted. I am saying that because the officials are also telling these parents that if their children leave the UK, they will not be entitled to anything, which is contrary to the British Nationality Act.

Registration under either of these is by right. It is not for the Home Secretary’s discretion. If the requirement is to exercise that the rights are met, the Home Secretary is required to register the child as a British citizen. Can the Minister confirm the earliest point at which a child born in the UK to a BNO national en route to settlement can expect to be able to secure their own connection to the UK, and by what means? Surely the answer is in Section 1(3) of the British Nationality Act 1981.

There is another related matter. There are dependents of those with BNO passports who arrived with HKSAR passports before the current BNO scheme was fully devised. For some, their passports are likely to expire before they achieve their five-year route to settlement. At the moment, they are getting the same response from immigration officials as parents with newborn children regarding their status—that they should approach the Chinese authorities for travel documents. It seems that for dependents with HKSAR passports there is another gap in the system. Quite often these are vulnerable people, sometimes elderly dependents or parents who have come with their children. They are not expecting to return to Hong Kong now.

There is another important point. Many of the Hong Kongers who have arrived here under this status are here because they are perceived as dissidents in Hong Kong under the new regime. Yesterday, in Southampton, two Hong Kongers were attacked by three pro-Chinese Communist Party men, allegedly Chinese students at the University of Southampton, where this happened.

We know, because of the behaviour of the Chinese consulate in Manchester some months ago, that these people are at real risk of attack. For any UK official to tell them to go and get documents from the Chinese is the most extraordinary thing I have ever heard. So I am looking forward to hearing from the Minister and hope that officials need to be briefed. If that is not the case, perhaps he could set out exactly why not. But most importantly, I wonder whether the Minister will meet with me, other signatories to my amendment and some BNO passport holders to further discuss this issue, so that the Home Office understands what is going on.

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[Baroness Brinton (LD)]

I am very grateful for the Minister’s answer. One of the reasons why I wanted to lay this probing amendment is that BNO paper-holders feel they are getting a clear message from Border Force and immigration officials that their children do not have that protected status. It is that hole that we are trying to get the answer to, and we have not had it yet. I am very grateful for the meeting, but they need to know because at the moment some of them are being told that their children have no rights and should have Chinese travel documents. If the Government’s officials are saying that, surely that is wrong.

[Lord Murray of Blidworth (Con)]

My Lords, clearly this needs to be looked into and I hear what the noble Baroness says. After the conclusion of the Committee we can have that meeting, explore the issue and I can respond in full. I am certainly not unsympathetic to the points raised.

The benefits of permanent settlement and British citizenship should not be available to those who come to the UK illegally. These clauses serve to underline our core message that if you come to the UK unlawfully, you will not be able to build a life in this country. I commend Clauses 29 to 36 to the Committee and invite the noble Baroness to withdraw her amendment.

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[Baroness Neuberger (CB)]

My Lords, I thank the right reverend Prelate the Bishop of Durham and the noble Baroness, Lady Lister of Burtersett, for what they said—they said most of what I wanted to say. I declare an interest as chair of University College Hospital’s foundation trust and the Whittington Hospital NHS trust, because it is relevant to what I will say.

When we debated, rather later than this, the Nationality and Borders Bill in February 2022, as the right reverend Prelate observed, we debated something that allowed the Government to introduce regulations that specified scientific methods that could be used to assess age, including examining or measuring parts of a person’s body and analysing saliva, cell or other samples and the DNA within them. As we heard, the use of scientific methods to assess age has long been the subject of debate, and professional medical bodies have been unequivocal in rejecting the use of dental X-rays, bone age and genital examination as extremely imprecise as methods for assessing age, quite apart from being singularly unpleasant. I have not yet met a health professional who thinks that we should use these methods to assess the age of children or young people.

Yet the legislation went ahead and is now being strengthened, and young people who do not consent will be assumed to be adults, which is really worrying for all sorts of reasons already stated in this House. But, of course, it also undermines the fundamental premise that people have to be able to give free consent to any medical procedure or examination and should not be pressured into undergoing them. In the way that these clauses, and this particular clause, are drafted, there is no way in which these young people are not being pressured into undergoing these examinations and procedures. We should take this very seriously because almost every medical and healthcare body would say that this is unethical.

We debated much of this only 15 months ago. Back then, I said that there was wide concern about age assessments among the various voluntary and statutory agencies concerned with young asylum seekers and among many medical, dental and scientific bodies. But, as I said last week, I chair a small family charity in memory of my parents that provides opportunities for education for young asylum seekers, most of whom are slightly older than the group we are discussing here—but a few have not been. Without exception, they all say that the worst of all this is not only the procedures they are being asked to undergo but the fact that they are not believed. It is almost as if there is an assumption that they are not telling the truth.

It is clear that the use of some of these procedures is unethical—certainly if it is not for the young person’s benefit. Since that is the case, can the Minister tell the Committee why a young person or child who does not give consent to these procedures should always be disbelieved, and why they should be regarded as an adult if they do not consent? As a parliamentary body, we have to look at this really seriously. If we do not trust young people at all to tell us the truth, we are making a terrible assumption about those who come to this country, often traumatised and very vulnerable, looking for a better future.

[Baroness Brinton (LD)]

My Lords, it is a pleasure to follow the right reverend Prelate the Bishop of Durham, the noble Baronesses, Lady Lister and Lady Neuberger, and the noble and learned Lord, Lord Hope. In this group, I propose that Clauses 55 and 56 should not stand part of the Bill. I will not repeat the points or arguments made so eloquently by noble Lords, save to say to the Minister that I echo all the questions that they posed.

The noble and learned Lord, Lord Hope, referred to the errors with age assessment. Given those, for me one of the key points was made by the British Association of Social Workers, which said that social workers are currently responsible for compiling age assessments, known as Merton assessments, but they are designed to ensure that the children’s needs are met—not for immigration purposes. That raises an issue that many doctors have also raised: that these professionals are registered, and in that registration have to abide by the ethics committee of their registration body, and therefore the individual that they are serving. The problem with the proposals in Clauses 55 and 56 is that they will become the agents of the Government and will not be there to best provide for the needs of the individual concerned.

Doctors also make the point that it is absolutely unethical to expose anyone to radiation from X-rays that are not for clinical purposes. There are risks associated with overexposure, particularly for young people who are still growing. I know from my own familial experience that there is quite often a debate between doctors about the frequency of MRI scans and X-rays.

The other problem, also covered by others, is that, should a person refuse to have scientific assessments, they will automatically be deemed adults. That is balanced by the comments made by the Children’s Commissioner about Gillick competence. I have not heard anybody else ask the Minister what government body will be responsible for ensuring that anybody who is deemed an adult but in fact is not, and therefore should have been under local authority care, will be able to access medical treatment and any other care that they would have been given had they had looked-after status and been with a local authority. Perhaps the slightly shorter way of saying that is to return to the question that we have covered quite a lot of times here in Committee: what is the role of the Home Office in all this, when the status of the child—or potential child—is not understood?

At Second Reading, when I raised this issue about the technology and asked why the clauses should remain in the Bill, the Minister said that he agreed that the technology was not ready but asserted that the clauses should remain because it was quite probable that it would be ready in a fairly short space of time. All the evidence that we have had, including from the previous Home Secretary’s committee, says that it is not ready and that, although it might come, there is absolutely no clear date on the horizon.

From the perspective of these Benches, the science does not work and there is no firm data or technology to show that it will; all the professionals involved have ethical considerations about the registration bodies, and these two clauses would force them to move away from that; carrying out tests such as MRI scans and X-rays for non-clinical reasons could well damage the people undergoing them; and, finally, there is the question of whether the child can give consent, not just because of Gillick competence but because their language ability and the trauma they have been through might not allow them to do so under duress. That is why we believe the only solution is to remove Clauses 55 and 56.

[Lord Coaker (Lab)]

My Lords, this is a very important group of amendments. I shall not speak particularly to my Amendment 127, supported by the noble Lord, Lord Alton, the noble Baroness, Lady Kennedy, and the noble Lord, Lord Carlile, because the debate has focused on some of the other amendments in the group and, given the hour, it is probably important to say a few words about those.

I start by saying to the Government that, unless they listen to some of the points that have been made by many noble Lords, children who deserve support will not receive it. That is the reality. Therefore, it is incumbent on the Government to look at what the Bill says and, at the very least, mitigate some of it and tighten up some of the various procedures.

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[Lord Murray of Blidworth (Con)]

My Lords, as we have heard, these clauses and amendments take us on to the provisions regarding age assessments. As I set out last week, the duty to make arrangements for removal in Clause 2 of the Bill does not apply to unaccompanied children until they reach adulthood. There is a power to remove them, but the Bill provides, as the Committee well knows, that this may be exercised only in very limited circumstances, such as for the purposes of reunion with a parent or where removal is to a safe country of origin.

Given that unaccompanied children will be treated differently from adults under the Bill, and the obvious safeguarding risks of adults purporting to be children being placed within our care system, it is important that we take steps to deter adults from claiming to be children and to avoid lengthy legal challenges to age-assessment decisions preventing the removal of those who have been assessed to be adults. Receiving care and services reserved for children also incurs costs and reduces accessibility of these services for genuine children who need them.

Assessing age is inherently difficult, as the right reverend Prelate identified. However, it is crucial that we disincentivise adults from knowingly misrepresenting themselves as children, given that unaccompanied children will be treated differently from adults under this Bill. Our data shows that between 2016 and March 2023 there were 8,611 asylum cases where age was disputed and subsequently resolved following an age assessment, of which nearly half—47%, 4,088 individuals—were found to be adults. Accordingly, Clause 55 disapplies the yet to be commenced right of appeal for age assessments, established in Section 54 of the Nationality and Borders Act 2022, for those who meet the four conditions in Clause 2 of this Bill. Instead, those wishing to challenge a decision on age will be able to do so through judicial review, but that review will not suspend removal and can continue from outside the UK after they have been removed.

In addition, Clause 55(5), identified by the noble and learned Lord, Lord Hope—

[Baroness Brinton (LD)]

The Minister referred to the figures increasing for disputed children, because the figures in 2021 had increased. I am looking at the information from the Helen Bamber Foundation. The foundation makes the point that in 2021, the Home Office started publishing statistics which included children who were being treated as adults by the Home Office after a short visual assessment only, but the actual data has not been disaggregated beyond that. Does the Minister recognise that it is apples and pears—it is not looking at the same thing? A different group of children were being included within the data.

[Lord Murray of Blidworth (Con)]

I do not recognise those statistics, but I will of course look at the Helen Bamber Foundation report that the noble Baroness identifies. The facts are stark. As I have already identified, a large proportion of disputed age-assessment cases result in the applicant being found to be over 18.

Clause 55(5), as commented upon by the noble and learned Lord, Lord Hope, seeks to ensure that age assessment judicial reviews will be considered by the courts on normal public law principles such as rationality, public law unreasonableness and procedural fairness. Such a challenge on these grounds is not as restrictive as the noble and learned Lord, Lord Hope, has suggested. However, Clause 55(5) will seek to ensure that the court does not consider age as a matter of fact and will not substitute its own decision on age, distinguishing itself from the position of the Supreme Court in the judgment of R (on the application of A) v London Borough of Croydon 2009.

Amendments 121 to 123, tabled by the right reverend Prelate the Bishop of Durham, and the noble and learned Lord, Lord Hope, seek to negate these provisions by omitting Clause 55(2), (4) and (5). They are not amendments which I can commend to the Committee. The right reverend Prelate the Bishop of Durham asked whether a person would be returned to the UK if a judicial review was successful. This would depend on the nature of the court’s judgment and any associated order. We will, of course, comply with any order of the court.

Amendments 124 to 126, tabled by the noble Baroness, Lady Lister, and the right reverend Prelate the Bishop of Durham, would similarly have the effect of neutering Clause 56. Clause 56 again seeks to disincentivise adults from knowingly misrepresenting themselves as children by making use of scientific age-assessment methods already employed in many other European countries, including the Netherlands, Luxembourg, Poland, Slovakia and the Czech Republic. Specifically, Clause 56 will enable us to bring forward regulations to provide that a person is to be treated as an adult if they refuse to consent to specified scientific methods for the purpose of age assessment, and the clause already provides that this would be the case only if the refusal was without good reason. I assure the noble Baronesses, Lady Lister and Lady Brinton, and other noble Lords that the regulation-making power will not be exercised until the science is sufficiently accurate to support providing for an automatic assumption of adulthood.

Given this, it would be premature to provide draft regulations as to the level of parliamentary scrutiny to apply to those regulations. We note the Constitution Committee’s recommendation that the affirmative procedure should apply—a point raised by the noble and learned Lord, Lord Hope—and we will respond in advance of the next stage.

[Lord Murray of Blidworth (Con)]

They participate in the particular type of medical scan that is utilised. That is the practice adopted by our European partners.

[Baroness Brinton (LD)]

Whether it is adopted by our European partners or not, Gillick competence is the key UK law that is used to decide whether a child can or cannot do it. It is not just Gillick competence; it is about whether they have the language to understand what is being asked of them. Could the Minister respond on the Gillick competence point, please? That is UK law.

[Lord Murray of Blidworth (Con)]

The provisions in the Bill are clear, and, as I say, in due course draft regulations will be provided, and they will be subject to scrutiny by this House. I am afraid there is little point speculating in the abstract on questions of Gillick competence in the absence of the regulations. But the point is clear that it would be contrary to the purpose of these provisions if an applicant was able simply to refuse to participate in scientific age assessment and that were to have no consequences; that would rob such provisions of efficacy, as the noble Baroness would have to concede, I suggest.

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[Lord Murray of Blidworth (Con)]

I am not sure that I agree with the allegation that this is unethical because, as the noble Baroness may recall, on a previous occasion when the principles of age assessment were discussed in this House, my noble friend Lord Lilley observed that the radiation risk in taking an X-ray is comparable to that of a transatlantic flight. I suggest that, as long as the appropriate safeguards are in place, there is nothing in principle wrong with inviting an applicant who says that they are under 18 to participate in an X-ray procedure.

[Baroness Brinton (LD)]

It may be that the noble Lord, Lord Lilley, has expertise that the Committee is not aware of but the Royal College of Paediatrics and Child Health is very clear that every single doctor registered with the GMC—and the equivalents for X-ray technologists and others—would be required, under the terms of their registration, to consider whether the work that they were doing was ethical. It is absolutely confident that it would not be, so one further question here—I do not want us to go into it now because we do not have time—is: how will the Government deliver this measure if all registered professionals are told by their registration bodies that they should not do this work?

[Lord Murray of Blidworth (Con)]

As the noble Baroness rightly says, now is not the moment to discuss this hypothetical but it is notable that our European neighbours operate such schemes and clearly have professionals who participate. These are all matters that would need to be looked at in the event that the scheme—

[Baroness Brinton (LD)]

Has the Minister had discussions with the GMC and social workers, for example?

[Lord Murray of Blidworth (Con)]

The noble Baroness now invites me to embark on a discussion that she just said she did not want to have. I agree with her first position because it is not relevant to the amendment that she raises.

Amendment 127 in the name of the noble Lord, Lord Coaker, would place a duty on the Secretary of State to publish an annual report on scientific age assessment methods, the attendant scientific advice and the statistics relating to their use. The Home Office already publishes such information: quarterly datasets including age disputes are available on GOV.UK—we have heard references to those in Committee this evening—and, when scientific methods of age assessment are introduced, the Home Office will ensure that we report and monitor that information. The Age Estimation Science Advisory Committee continues to provide scientific advice to the Home Secretary and the Home Office’s chief scientific adviser. Their first report was published on GOV.UK, as the noble Baroness, Lady Lister, identified, and the Government will continue to seek advice from the committee. Given that we already publish the kind of information and data proposed by the noble Lord, I submit that his amendment is unnecessary.