Illegal Migration Bill

Baroness Helic Excerpts

Committee stage
Wednesday 7th June 2023 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

My Lords, I support these amendments generally, in particular those in the name of the noble Baroness, Lady Mobarik—it is a pleasure to follow her powerful speech. I have added my name to Amendments 60 and 65.

It was to the Conservative-led coalition Government’s credit that they ended the routine detention of children and replaced it with strict limits. It is thus inexplicable, as the noble Baroness said, that the present Conservative Government should choose to reverse that policy. Prior to that reversal, the Royal College of General Practitioners, together with other royal colleges, published an intercollegiate briefing paper which described the

“significant harms to the physical and mental health of children and young people in the UK who are subjected to administrative immigration detention”.

It concluded that the immigration detention of children and their families is “harmful and unacceptable”. Among the evidence at the time was that provided by Medical Justice clinicians, who

“identified psychological harm to be caused and exacerbated by detention. Symptoms included bed wetting and loss of bowel control, heightened anxiety, food refusal, withdrawal … and persistent crying. Many children exhibited signs of developmental regression … some attempted to end their own lives”.

Today, many organisations—health, children’s and refugee—have briefed us about the likely health implications of such a reversal. To quote the Refugee and Migrant Children’s Consortium, the effects on children’s

“physical and mental health included weight loss, sleeplessness, nightmares, skin complaints and self-harm, depression and symptoms of post-traumatic stress disorder”.

It also cites, as did the noble Lord, more recent collaborative evidence from Australia. The Royal College of Psychiatrists warns of the likely damaging impact on child mental and physical health of

“the restriction of movement, lack of community exposure, and limited access to health and educational services”

associated with detention. The Independent Advisory Panel on Deaths in Custody, a non-departmental public body, has warned the Home Secretary that this is

“a group who are particularly vulnerable, including in respect of mental ill-health, self-harm, and suicide due to trauma caused by dislocation from family”.

It also emphasises

“the link between the indefinite nature of detention and feelings of uncertainty and hopelessness, which can increase the risk of suicidality”.

A group of people with lived experience of the asylum system who advise Doctors of the World have written an open letter to Peers which speaks of their particular concern about the detention of children and pregnant women, whose plight I think we will debate shortly. However, more generally on the basis of their experience they write that

“some of us start shaking when detention centres are mentioned, or crying when watching the news about this Bill”.

The Children’s Commissioner has expressed deep concern at the prospect of children being detained for significant periods of time. She has not been reassured by the government amendment—mentioned by the noble Baroness—which does not specify any time limits or cover children who are with their families. Can the Minister tell us what steps will be taken to ensure that children are detained for as short a period as possible, as he assured us they would be? Also, what is his estimate of the numbers of children in detention as a result of this change of policy, in the absence of an impact assessment?

The Children’s Commissioner points out that Article 37 of the UNCRC is clear that children must be detained for as short a time as possible. UNICEF makes the point even more strongly, warning that the broad discretion on the detention of children provided by the Bill

“is not compatible with international standards”

and

“would not comply with the principle of the best interests of the child”.

Some, including the Committee on the Rights of the Child, have gone so far as to argue that Article 37 means that children should simply not be detained at all in an immigration context. Whether or not one accepts that interpretation, it is clear that the powers given to the Home Secretary in Clause 11 once again contravene a key international convention.

Although the Chief Inspector of Prisons’ report published yesterday, mentioned earlier by the noble Lord, Lord German, welcomed some improvements in the short-term holding facilities in Kent, it noted:

“Children were detained for far too long at all sites”.


During the previous six months:

“Detention records indicated that 337 children had been held in breach of the statutory 24-hour time limit”,


with one held for just over three days. It notes that some particularly vulnerable children were held for too long, giving the example of a 17 year-old girl with a 10 month-old baby—conceived, she said, following rape—who was held from 11.30 am and then overnight, for nearly 24 hours. If this is already happening, I dread to think what the situation will be like if Clause 10 reaches the statute book.

The incentives—pull factor—argument used by Ministers in their attempt to justify this retrograde policy would be laughable if the implications for children’s well-being and best interests were not so serious.

[Baroness Helic (Con)]

My Lords, I support Amendments 59, 63, 64 and 67. I believe these are measured and proportionate steps to preserve existing safeguards around child detention—safeguards introduced by a Conservative Government.

Child detention must only ever be a last resort. That is a clear requirement, as many have said, of Article 37 of the UN Convention on the Rights of the Child, which also requires that detention be for the shortest appropriate time. Article 22 requires states to ensure that children seeking refugee status receive “protection and humanitarian assistance”. I hope and believe that these principles will be recognised and shared across your Lordships’ Committee.

There is strong evidence that the mental and physical health impacts of detention on children are severe. For refugee children, often escaping from traumatic circumstances, detention can further compound their trauma. Detention separates children from their peers, interrupts their education, exposes them to violence and denies them the safe, loving and supportive environment that children need to develop and thrive, and which is their right. Detention undermines parental authority and strains the parent-child relationship. This lasts well beyond the period of detention itself. Even short spells in detention can cause trauma and long-term mental health risks for children. When we detain refugee children, we should know that we are making their future lives and integration into society even harder.

My noble friends in government may have said that they recognise these impacts and do not want to detain children, but I am afraid that, as written, this is precisely what the Bill will do. My noble friend Lady Mobarik has explained the existing limits and how the Bill would change them. To reiterate: the detention powers in the Bill would apply to all migrant children and could see them routinely detained in any location for an indefinite period. This is simply not in line with the principle of child detention as a limited last resort.

We know that the immigration system is overstretched. As such, we can reliably expect every time limit and latitude granted to immigration officials by the Bill to be exploited to the full. Therefore, we must make certain that children’s rights and the limits on their detention are guaranteed in law. It is not good enough for my noble friend the Minister to say that child detention should be exceptional. The law must make it exceptional.

There are some problems which new laws can solve. There are other times when new laws will have no effect—or such serious side-effects that they are entirely disproportionate to the problem. If the Government do not feel that they can regulate immigration and asylum without locking up children for extended periods, that is indicative of a broken system. It is not a problem that is resolved by detaining children.

There is no evidence that the introduction of the existing limits on child detention have led to an increase in illegal immigration. There is no reason to think that removing these limits will improve the Government’s ability to control immigration and prevent the dangerous channel crossings. Exposing children to greater risk of harm, with no guarantee of preventing harm, is not a step we should accept.

The existing limits on child detention, brought in after careful consideration by the Conservative Government, meet the practical need that sadly exists. They ensure that detention is strictly controlled and time-limited, as the UN Convention on the Rights of the Child requires. They mitigate the harm that detention causes. They make detention the last resort. That is what we must retain, and I urge noble Lords to support these amendments.

[Baroness Hamwee (LD)]

I remember well when the detention of children was ended by legislation. I visited Cedars, the property—I do not like the term “facility” in this connection—near Gatwick that was used for two or three days before the removal of families who were going to be removed and were at the end of the argument, if you like. What was particularly notable to me were the facilities for the children, and the support that was given to them, who were accommodated there for a very short time, to help them prepare to go back to a country that they may or may not have remembered—indeed, that they may not have ever lived in. It suffused the whole place and was really admirable. You only had to walk into the place to see the equipment and toys, and the information that was set out, as well as the work being done by social workers to support the children concerned. There were no families there at that point; the property used to allow visitors only on days when it knew that no families would be in residence.

I have a number of amendments in this group. The first is Amendment 59A, which seeks to probe the “discretion” given to the Secretary of State in making regulations regarding the detention of unaccompanied children. Amendment 64A is a similar amendment. The reason for my tabling this amendment is to understand whether the envisaged discretion can be exercised to extend the circumstances specified in an earlier part of the clause or to narrow those circumstances.

I discovered a possible answer to this when looking at my next amendment, Amendment 61B, which would provide for the affirmative procedure. Amendment 64C is a similar amendment. I tabled this amendment out of pure instinct that there should be an affirmative procedure, not a negative one. I subsequently discovered that the Delegated Powers and Regulatory Reform Committee, with considerably more logic than I bring to the matter, recommended the affirmative procedure. I quote its report:

“The Memorandum explains that the negative procedure is considered appropriate because ‘the effect of any regulations is to limit the circumstances in which an unaccompanied child may be detained or the duration of detention for the purposes of removal’. In our view, this explanation is misconceived”.


That is very much committee speak for, “We really disagree”. The report went on:

“The regulation making power can only be viewed as a limiting power from the perspective of the Bill as introduced into the House of Commons which conferred an unfettered power to detain unaccompanied children”.


However, amendments were then made in the Commons, so

“no such unfettered power of detention exists in the Bill as introduced into the House of Lords. It is the regulations alone which will specify the circumstances in which unaccompanied children will be capable of being detained, in the absence of which there is no power to detain such children. Given the importance and sensitivity of the subject matter, we consider that the affirmative resolution procedure should apply”.

As I say, the committee approached this with considerably more logic and power than I was planning to bring to it.