Short-term Holding Facility (Amendment) Rules 2022

Baroness Lister of Burtersett Excerpts

Tuesday 18th April 2023 Lords Chamber

Moved by

[Baroness Lister of Burtersett]

That this House regrets that the Short-term Holding Facility (Amendment) Rules 2022 (SI 2022/1345) remove important safeguards and reduce the standards for the lawful detention beyond 24 hours of migrants, including children and vulnerable adults, at the immigration detention facility in Manston, Kent; that the Home Office has not consulted on these changes nor provided an adequate policy justification for them; and that this potentially contentious legislation was brought into effect while the House was in recess.

Relevant document: 25th Report from the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument)

[Baroness Lister of Burtersett (Lab)]

My Lords, the wording of this regret Motion is taken in large part from the highly critical report of the Secondary Legislation Scrutiny Committee, which draws the rules to the special attention of the House. Its report reflects the grave concerns expressed in a joint submission from Medical Justice, Freedom from Torture, Bail for Immigration Detainees, Rainbow Migration, JRS UK, the Helen Bamber Foundation, and Detention Action. I am grateful to Medical Justice and Freedom from Torture for their help with this Motion, and refer to the register for support from RAMP.

By way of background, a short-term holding facility is a type of immigration detention centre governed by legal rules that regulate the amenities and services that different types of facility must provide. There are two types: residential STHFs, and non-residential “holding rooms”. Normal maximum detention times are five days in the former and 24 hours in the latter. These rules create a new category called “residential holding room” which is now being applied to the Manston facility, a non-residential holding room, which attracted considerable criticism recently for its dreadful conditions and unlawful operation. Residents of RHRs will be detained for a normal maximum of four days, extendable in “exceptional circumstances”. Exceptional circumstances are not defined, but in its written response to the SLSC’s questions, the Home Office gave us an example: “unexpected and very large numbers of small boat arrivals”. Could the Minister tell us what would constitute an unexpected and very large number, given that the Government give the impression that large numbers are far from exceptional or unexpected at certain times of the year? Can he explain why there are no absolute time limits, as with residential STHFs?

Criticisms of the rules in the SLSC report and the joint submission concern both their substance and the process of their introduction. The joint submission draws attention to how the safeguards applied in existing residential short-term facilities are being “dramatically downgraded”, and standards regarding healthcare, communications, sleeping accommodation and access to legal advice are being reduced.

Modifications to Rules 32 and 30 mean that detainees with particular vulnerabilities and at risk of harm, who are especially likely to suffer damage from detention, are less likely to be identified. This includes torture or trafficking victims, and those experiencing suicidal ideation and other serious mental health conditions. Yet the existing statutory guidance on adults at risk recognises the need to ensure that vulnerable people are not detained inappropriately. The amended Rule 32 does not, for example, include a reporting mechanism for those with evidence of torture, so there will be no process for identifying and safeguarding this highly vulnerable group. The amended Rule 30 changes the deadline for medical screening from within two to 24 hours of admission, and even that can be lengthened in “exceptional circumstances”—again, that is not defined, but the same example of unexpected and large numbers of boat arrivals has been provided.

Examples of reductions in the standards applied in residential STHFs include the absence of a firm requirement for separate sleeping accommodation for people of the opposite sex, and for minors or families to be in sleeping accommodation that is inaccessible to unrelated detained persons. Others reduced rights to communication: can the Minister clarify whether those held in an RHR will be permitted face-to-face visits, such as from external organisations? If so, will any restrictions be placed on who may visit? Of particular importance is the ability to meet a legal adviser; can the Minister confirm that RHRs will make provision for legal advice and representation, including the right to face-to-face meetings?

The SLSC underlines that:

“The overall effect … is that the facilities and amenities available to people who may be detained for four days are materially lower than those deemed necessary for people who may be detained for five days”.


The committee was not impressed by the Home Office’s response to its question as to why this was appropriate. Unlike the Home Office, it does not consider the appropriate comparison to be with the rules applying to non-residential holding rooms. Given that this is a new category of residential holding facility, the committee is surely right to make the comparison with other short-term residential facilities.

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[Lord Murray of Blidworth (Con)]

Of course; I entirely accept that.

[Baroness Lister of Burtersett (Lab)]

My Lords, I am very grateful to everybody who has spoken, all of whom I think have deepened the arguments and reminded noble Lords what is at stake here. I am grateful to the Minister for spelling out the Government’s case. I suspect he did not manage to answer all the questions, so I would be very grateful if he could look through Hansard and write to everybody who spoke in answer to those questions.

Rwanda: Memorandum of Understanding

Baroness Lister of Burtersett Excerpts

Monday 6th February 2023 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

My Lords, I refer to the register and my support from RAMP. One reason why the MoU is such an important political issue, as agreed by the committee and the Government, and also a moral issue, is the widespread fear about the implications for children wrongly assessed as adults. I welcome the assurance in a Written Answer that

“no one undergoing an age assessment, or legally challenging the outcome of an assessment, will be relocated until that process is fully concluded”,

but I am advised that where the child has been assessed as an adult at the border, even if they subsequently challenge that assessment, they may still be issued with a notice of intent, which can create acute anxiety, especially as they have only seven days to respond. Can the Minister say whether that advice is correct?

Given the many procedural errors identified in the High Court Rwanda judgment and the chief inspector’s comment that the age-assessment process for those arriving by small boats was “perfunctory”, how can we have confidence that unaccompanied children who do not understand the age-assessment process or have no legal support will not be wrongly issued with a notice of intent? Can the Minister explain why, when we have been told that no decision has yet been taken as to whether families with children might be relocated, Care 4 Calais reports that 42, or one-fifth, of its clients issued with a notice of intent since last August have children?

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[Lord Murray of Blidworth (Con)]

I appreciate the hypothetical question that my noble friend asks. As I say, the issue was one for the Statements that were provided to the House of Commons, and it seems that there was no want of scrutiny. Therefore, I am afraid that I do not accept that contention.

[Baroness Lister of Burtersett (Lab)]

My Lords, the noble Lord said that he was not able to answer all the questions asked. Will he please write to noble Lords with the answers?

[Lord Murray of Blidworth (Con)]

Yes, certainly; we will have a look through them.

National Security Bill

Baroness Lister of Burtersett Excerpts

Committee stage
Monday 16th January 2023 Lords Chamber

So I say to the Minister: why here, why now and why the hurry? This can be dealt with with the complete co-operation of your Lordships’ House, but not in the way it is being done. I urge the Government not to wait for Report but to take some executive decisions right now and say that what we should do is concentrate on what really matters, the true national security part of the Bill. Let us get that enacted with minimal amendment and with the co-operation of the whole of your Lordships’ House, wherever we come from politically or not, as the case may be. Let us go back to the drawing board and produce real architectural planning for a FIR scheme if it is to reach wider.

[Baroness Lister of Burtersett (Lab)]

My Lords, I apologise for popping up at this point, not having taken part in the debates so far, but I was requested to do so by the British Academy, the UK’s national academy of humanities and social sciences, of which I am proud to be a fellow. I am also an academic who has in the past collaborated with colleagues from outside the UK in the area of social policy, which of course is trying to influence government.

I am sure I do not need to spell out the importance of international research collaboration, which was touched on by my noble friend Lord Stansgate, especially in the wake of the Science Minister’s speech last week which emphasised the importance of the Government’s global science strategy. Any such strategy requires international collaboration. The British Academy accepts that mechanisms to prevent foreign interference are necessary, but such mechanisms must safeguard the benefits of international research and protect academic freedom. It is worth just noting here what the Joint Committee on Human Rights had to say. It was concerned that this was introduced at such a late stage of the Bill’s passage that it could not comment properly on it, but it said:

“Any foreign influence registration scheme must contain adequate protections to ensure that it does not interfere unduly with democratic rights, including freedom of association and free speech.”


I think everything we have heard so today, other than from the Minister, suggests that it could interfere in that way.

Indeed, the British Academy argues that such mechanisms exist already and that FIRS would duplicate them in a way that creates totally unnecessary bureaucracy, which surely this Government, of all Governments, want to avoid. It is not helped by the lack of clarity in the wording, which was referred to by the noble Lord, Lord Wallace of Saltaire, with details left for secondary legislation. The effect, the British Academy argues, would be a significant negative impact on the ability of UK researchers to engage internationally, creating irreversible harm to the UK’s research and innovation standing. The academy is not prone to hyperbole.

As currently drafted, as we have heard, FIRS would entangle wide swathes of international activities and is likely to have a chilling effect on international collaboration, not just deterring those with malign intent—as referred to by the Minister—but probably having a much greater impact on those with utterly benign intent. I cannot believe for a moment that this is what the Government want, especially given that it would undermine their own aspirations to forge a global science strategy.

It is in the Government’s own interest to accept the British Academy’s recommendation that they withdraw Part 3—I think I am echoing what the noble Lord, Lord Carlile, said—and consult with it and other relevant organisations to cocreate a framework that is proportionate and reasonable, taking into account existing reporting and oversight mechanisms. The academy argues that research and innovation should be largely excluded from FIRS. Is this something that the Government are willing to consider? If not, why not? Will the Minister agree to take this away, have discussions with the British Academy and others and, ideally, withdraw Part 3 altogether as has been suggested or, at the very least, come up with something less harmful before Report? I am echoing other noble Lords in calling for a longer pause than currently envisaged. The more I have listened to today’s debate, the more horrified I have become at what this part of the Bill might mean.

[Lord Clement-Jones (LD)]

My Lords, I rise to speak to Amendment 103, and I declare my interests as set out in the register.

Like the noble Baronesses, Lady Noakes and Lady Lister, I am new to the Bill and have been provoked by briefings. Like others who have spoken today, I emphasise that I am absolutely no fan of this foreign influence registration scheme, which is far too broad in its application, as we have heard. I think it will be highly damaging to UK research and development, inward investment and British interests around the world. The noble Baroness, Lady Hayter, listed those who might get caught up in the scheme, and clearly very few of those have any connection at all with national security. I am delighted to support many amendments in this group and, in particular, the clause stand part notices that the noble Lords, Lord Anderson of Ipswich and Lord Carlile of Berriew, and my noble friend Lord Wallace have spoken to so cogently.

This has given us the opportunity to debate the flawed nature of the whole scheme. I will make some remarks about the impact on business and investment, which my noble friend Lord Fox would have made were he able to be here. We have heard powerful testimony from the British Academy, referred to by the noble Baroness, Lady Lister, and from the Russell group, referred to by the noble Viscount, Lord Stansgate, about the hugely detrimental potential impact of the Bill on the international research and development front. The British Academy rightly says that international collaboration is critical to the excellence of UK research and the Government’s aim to become a scientific and global science superpower. As it says, as currently drafted the FIRS will have a severely negative impact on the UK’s ability to engage with researchers internationally and on the ability of researchers in the humanities and social sciences to engage on critical public policy topics, and it will irrevocably harm the UK’s research and innovation standing. Strong words.

Under the scheme as currently proposed, at minimum, research universities will be smothered in red tape and, at worst, heavy criminal penalties in undertaking international research partnerships will be imposed. Bluntly, I must tell the Minister that his amendments add very little to the clarity of this scheme. The Minister’s letter about the intersection with the National Security and Investment Act, which we debated in 2021, was far from convincing. There is already a raft of other legislation relating to the academic technology approval scheme and export control, which impact on a university’s international activities. If this scheme, by mischance, does go through, it makes Amendment 104, in the name of my noble friend Lord Wallace, the absolute bare minimum needed. Both the Russell group and the British Academy make the case for clarity, non-duplication, proportionality and a high threshold for registration, none of which is currently present in the scheme.

A further cause for withdrawal of this scheme is the strong reaction from the business and investment community. That is why this stand part debate is so important. The ABI states very clearly that the current proposal for the FIRS

“risks placing significant reporting burden on insurers and long-term savings providers investing in the UK, with the potential to negatively impact the UK’s international competitiveness and attractiveness as a place to invest”.

TheCityUK says these proposals

“if passed unamended would have a chilling effect on inward investment into the UK”.

Asylum Seekers: Local Authority Accommodation

Baroness Lister of Burtersett Excerpts

Monday 16th January 2023 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

In view of the recent report on PoliticsHome of an asylum-seeking family left in mould-ridden accommodation, and the claim of a local charity that the standard of Home Office asylum-seeker accommodation is often “squalid and unsanitary”, what steps are the Government taking to ensure that all such accommodation meets basic standards of decency?

[Lord Murray of Blidworth (Con)]

I thank the noble Baroness for her question. Obviously, asylum seekers who would otherwise be destitute can obtain support, including accommodation, under Section 95 of the Immigration and Asylum Act 1999. There is a requirement under Section 96 of that Act that such accommodation should be adequate to the needs of the supported person and their dependants. The courts held in the case of AMA v the Secretary of State last year that a hotel room met the threshold of adequacy, despite the nature of the accommodation being far from ideal. Clearly, it is important that all accommodation provided is adequate and meets the needs of those within it. The department is responsive to complaints of inadequate accommodation; it is a priority for the department to ensure that accommodation is appropriately delivered to those who need it.

Migration and Economic Development Partnership with Rwanda

Baroness Lister of Burtersett Excerpts

Tuesday 20th December 2022 Lords Chamber

[Lord Murray of Blidworth (Con)]

Yes, certainly. The starting point is that Rwanda is a signatory to the 1951 refugee convention and the seven other principal United Nations conventions. As part of the memorandum, it was clear that the Rwandan Government agreed to adhere to international norms in the consideration of all applications for asylum and protection.

[Baroness Lister of Burtersett (Lab)]

My Lords, according to refugee organisations, although we were told that unaccompanied children would not be removed to Rwanda, some have already been issued with notices of intent for so-called relocation because they have been assessed incorrectly as adults. The Statement conveniently left out the judge’s warning that the Home Secretary must consider properly the circumstances of each individual claim. What therefore are the procedures and safeguards to ensure that no child is wrongly issued with a notice of intent?

[Lord Murray of Blidworth (Con)]

As I have already noted to the House, there is no in principle position that children may not be removed under the scheme; it is simply not presently the intention of the Government to do so. As I made clear only recently at Questions, age assessment is something that the department is looking at very closely in light of the new provisions under the Nationality and Borders Act. As the noble Baroness will be aware, since 2016, in half of the cases where age was disputed, the age was ultimately found to be over 18, so we have to be very careful about people who maintain that they are children. Of course, it is very important that those under 18 are carefully protected from those who claim to be under 18 but are not. As I say, it is the intention of the Government to remove families at a point in future when the Rwanda scheme is ready for that purpose.

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[Lord Murray of Blidworth (Con)]

Forgive me; I said earlier to the noble Lord, Lord Coaker, that families with children are potentially eligible for relocation, but the initial process will focus on adults. A further assessment of Rwanda’s capacity to accommodate children will be undertaken before this occurs. That is the Government’s position in relation to children. Regarding whether asylum seekers can leave Rwanda and come back here, in theory they could leave Rwanda, but one hopes that they would not be able to avail themselves of the criminal gangs to smuggle them across the channel because we would have broken the gangs’ business model.

[Baroness Lister of Burtersett (Lab)]

My Lords, I may have misunderstood, but I think the Minister said that unaccompanied children can be sent to Rwanda. Back in July, the noble Baroness—

[Lord Murray of Blidworth (Con)]

It is not unaccompanied children but families with children.

[Baroness Lister of Burtersett (Lab)]

I was going to ask specifically about unaccompanied children, but I thank the Minister.

[Lord Lexden (Con)]

What is the total amount that the Government have spent so far in legal fees in attempting to implement this policy? What is the record of the Rwandan Government in protecting, upholding and safeguarding the rights of LGBT people?

X-Rays: Child Refugees

Baroness Lister of Burtersett Excerpts

Tuesday 6th December 2022 Lords Chamber

[Lord Murray of Blidworth (Con)]

The report is still under evaluation. I am afraid there is no estimate at the moment for the production of the report.

[Baroness Lister of Burtersett (Lab)]

My Lords, I have twice recently through Written Questions tried to find out whether the Government will publish the report of the advisory committee. Both answers—which were almost identical—avoided answering the question. Could the Minister therefore tell us now whether the Government will publish this key report and, if not, why not?

[Lord Murray of Blidworth (Con)]

As I said, the report is being considered and a decision on publication will be made in due course.

Asylum Seekers: Accommodation and Safeguarding

Baroness Lister of Burtersett Excerpts

Wednesday 9th November 2022 Lords Chamber

[Lord Murray of Blidworth (Con)]

I assure the right reverend Prelate that the Home Office takes very seriously its responsibility towards unaccompanied asylum-seeking children. It seeks to place them into separate accommodation as early as can be achieved. As I say, the welfare of children is among its first priorities.

[Baroness Lister of Burtersett (Lab)]

My Lords, despite what the Minister has just said, there is growing concern among civil society groups about what is happening to children caught up in this asylum mess. Can the Minister say exactly what safeguarding mechanisms are in place to protect these children, and to ensure that no child is wrongly classified and treated as an adult?

[Lord Murray of Blidworth (Con)]

I thank the noble Baroness for her question. Clearly, every person who arrives at Manston and says that their age is below 18 is the subject of an age assessment—that is, a neutral evaluation of that status. If they are believed to be children then they are treated, as I say, as a key priority for the Home Office and housed in special hotels, which are secure and provide the necessary support for unaccompanied asylum-seeking children.

Rwanda Asylum Partnership: Removal of Unaccompanied Children

Baroness Lister of Burtersett Excerpts

Thursday 21st July 2022 Lords Chamber

Asked by

[Baroness Lister of Burtersett]

To ask Her Majesty’s Government what steps they are taking to ensure no unaccompanied children are removed to Rwanda because they have been mistakenly assessed to be adults.

[Baroness Lister of Burtersett (Lab)]

My Lords, I thank noble Lords who have signed up to speak and the Minister; I suspect they were all hoping to have started the Recess by now. I tabled this QSD because I was so dissatisfied with the answer that the Minister gave on 15 June during questions on a Statement. In essence, I asked the question posed today, and the answer I received was that the Minister

“made clear in the other place that no unaccompanied asylum-seeking child will be sent to Rwanda, and I am sure I repeated it in this House.”—[Official Report, 15/6/22; col. 1597.]

No doubt she did, but that was not the point of the question.

I know it is government policy not to send unaccompanied children to Rwanda and that is welcome, although your Lordships’ House made clear during the passage of the Nationality and Borders Act its view that responsibility for anyone claiming asylum in this country should not be “offshored” in that way, particularly now that it has become clear that they will be given a one-way ticket regardless of whether they are subsequently granted refugee status.

The point of the question was to draw to the Minister’s attention the real concerns among members of the Refugee and Migrant Children’s Consortium of over 60 organisations that the commitment not to remove unaccompanied children is already being undermined because some of these children are being wrongly assessed as adults. Those concerns are reinforced by today’s highly critical report by the Independent Chief Inspector of Borders and Immigration on the processing of boat arrivals, which states:

“The treatment of those claiming to be children was not child-centred … The age assessment process was perfunctory and engagement with the young people was minimal.”


My concerns are all the greater given the forthcoming changes to age assessment, which I will not pursue now but were also rejected by your Lordships’ House. As was made clear during our debates, age assessment is not easy. Many children arrive without documentation of their birth date, for totally legitimate reasons, and it is widely recognised that physical appearance is not a reliable indicator of age. Nevertheless, an initial Home Office decision will be based on an individual’s “appearance and demeanour”. Where that gives rise to suspicion, one of two courses of action are currently taken. Under the first, the individual is treated as a child whose age is disputed and they are referred to a local authority for further assessment. According to a recent Written Answer, during the first quarter of this year, of 255 age disputes resolved, half concluded that the person was a child. Under the second course of action, if their

“physical appearance/demeanour very strongly suggests that they are significantly over 18”,

the individual is treated as an adult and moved straight to adult accommodation or detention—but there are no statistics for how many are so treated and no monitoring of the consequences. Why are these data not kept? Will the Minister look into the possibility of doing so?

Some data have been collected by the Helen Bamber Foundation from local authorities on those referred to children’s services because of staff doubts over their adult status, having first been sent to adult accommodation/detention between January and March of this year. Of the 211 in 64 authorities for whom they got information, two-thirds were found to be children, meaning that in just three months nearly 150 children could have been at risk of wrongful removal. The chief inspector cites Refugee Council statistics which show that in all but six of 106 resolved cases of young people deemed to be over 25 on arrival, they were subsequently found to be children.

On Report I cited the tragic example of Alex, who had killed himself and whose inquest concluded that his wrongful assessment as an adult and his subsequent ill treatment contributed to the “destructive spiral” that led to his death, even though the error was rectified. It is argued by Ministers that the wrongful treatment of adults as children has safeguarding implications, but this example illustrates the serious safeguarding implications of treating children as adults. Those consequences will be considerably more serious if they are removed to Rwanda as adults.

The Home Office has reassured critics that:

“Everyone considered for relocations to Rwanda will be screened and have access to legal advice”


and that there are adequate safeguards to ensure that children are not subject to inadmissibility procedures, but that was contradicted by oral evidence to the Home Affairs Select Committee by Asylum Aid, the Refugee Council and Medical Justice. In their experience, recent arrivals to the UK are being detained without any screening for vulnerabilities. To quote the director of Asylum Aid:

“While detained, isolated, frightened and overwhelmed, they often do not understand what is happening to them”.


They are told that they may be sent to Rwanda and have only seven days in which to access legal advice and respond to the many complex questions that arise in such cases. The notice of intent, the inadmissibility notice and the information pack do not even set out that unaccompanied children should not be sent to Rwanda. Why is that the case? Will the Minister undertake to ensure that, as a minimum, those documents contain that information?

Without prejudice to its opposition to the Rwanda scheme as a whole, the consortium makes four recommendations with regard to children as follows. First, no one who claims to be a child but is being treated as an adult by the Home Office should be issued with a removal notice until confirmation is received from their legal representative that they have not been, or will not be, referred to a local authority. Secondly, in any case of an age dispute, where a person has been assessed as an adult by a local authority or the new National Age Assessment Board, the Home Office should not initiate or continue with the inadmissibility process until the time limit for challenging the decision via judicial review or appeal has passed, or the challenge or appeal has been heard and decided. Thirdly, where a person has been issued a notice of intent but is then subsequently accepted into children’s services as a child, the Home Office should confirm that their asylum claim will be deemed admissible. The process to be followed should be published. Finally, as I argued earlier, those claiming to be children who are assessed as adults at the outset should be identified in the statistics and what happens to them monitored.

The Government rightly accept the principle that no unaccompanied child should be removed to Rwanda. Let us try to put ourselves in the shoes of a child who has made a difficult journey to the UK, often having faced trauma in their home country or during the journey, and who now believes they have reached safety. What must if feel like to be told that they are now to be forwarded, alongside adults, to a country they know nothing about, like a parcel stamped “no return to sender”. We are given some insight by testimony from a Refugee Council worker who has been working with two children initially detained as adults. That worker writes:

“They were very worried these kids. Very, very depressed, very emotional, lack of energy, lack of sleep. They just didn’t know what would happen to them, all they were thinking about was Rwanda … They are so frightened. The first one I saw, he just locked himself in his room … He was shocked. He said the experience was worse than travelling to the UK”.


Pretty sobering, my Lords. Perhaps the Home Office will dismiss such observations as just anecdotes but, as the Home Affairs Select Committee, which raised a number of concerns about age assessment in this week’s report, observed:

“Specific instances may illustrate systemic issues”.


From all I have read and heard, I fear we are talking about systemic issues. If the Government believe that no unaccompanied child should be sent to Rwanda, surely it behoves them to do all in their power to ensure that this principle is not undermined in practice. I thus welcome the fact that there will be a meeting between consortium members and officials soon. Might I ask that the consortium’s recommendations be given serious consideration and that there is a real commitment to working out a way of ensuring that the Government’s own aim is achieved? Might I also ask that those who spoke in this debate today are told what practical steps will be taken as a result of this meeting? We have a bit of time now that flights have been suspended during the leadership election. Please use it constructively to ensure that unaccompanied children receive the protection promised them.

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[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, I thank the noble Baroness, Lady Lister of Burtersett, for securing this debate and all noble Lords who have contributed to it. It is a very important topic and I am very happy to set out the Government’s position. In response to the point made by the noble Lord, Lord Dubs, I am happy to engage in future debates on this important issue.

Before I come on to discuss the specific points that have been raised, I hope colleagues will allow me to briefly set out some background. Last year, the Government published our New Plan for Immigration, and we have since introduced the Nationality and Borders Act, which is the legislative vehicle through which we will put much of that plan into action. In April this year, we announced the migration and economic development partnership with Rwanda, which is part of a co-ordinated strategy to disincentivise dangerous and unnecessary journeys, such as small boat crossings, to save lives and to increase public confidence in our immigration system. In reply to the point made by the noble Lord, Lord Tunnicliffe, we have many safe and legal routes which allow people to come here safely. The UK and Rwanda have worked closely on the arrangement to ensure adequate safeguards are in place to protect vulnerable people seeking safety, as set out in the memorandum of understanding. There are provisions for a monitoring committee to monitor the end-to-end process.

Turning to the specific topic of today’s debate, I cannot comment on ongoing legal proceedings but our position under the Home Office’s inadmissibility guidance is clear: unaccompanied asylum-seeking children are not suitable for third-country inadmissibility action and as such are not eligible for relocation to Rwanda. The approach to unaccompanied asylum-seeking children is also extended to any individual whose age has been disputed by the Home Office but where that age dispute is ongoing. I hope that answers the question asked by the noble Lord, Lord Dubs.

In answer to my noble friend Lord Lilley, as to why we cannot speculate on the reasons why unaccompanied asylum-seeking children might travel to the UK, everyone considered for relocation to Rwanda will be screened and have access to legal advice. This includes individuals who are undergoing a full Merton assessment and those who have legally challenged their assessment. The age of an individual arriving in the UK is normally established from the documents with which they have travelled. However, many who claim to be under the age of 18 do not have any definitive legal documentary evidence to support their claimed age, to answer the question from my noble friend. While many are clearly children, for others it is less clear. It is important that there is an effective decision-making process in place, not least for safeguarding reasons. An incorrect determination could result in an adult being placed with or alongside children. Conversely, if a child is wrongly assessed to be an adult, they may be served with an inadmissibility decision.

This initial age assessment is just the first stage in the broader age-assessment process. Where there is still doubt, the individual will be treated as a child, pending further consideration of their age. The Supreme Court recently and unanimously held that the Home Office’s initial age assessment policy was lawful in the case of BF (Eritrea) v Secretary of State for the Home Department, and that was last year.

The policy contains various safeguards, including that an individual whose age has been disputed may be treated as an adult without further consideration of their age only where two officers, one of at least chief immigration officer grade, have independently assessed them as being over the age of 18, based on their physical appearance and demeanour. There is a large margin of error in the individual’s favour, and that is designed to ensure that only where it is very clear that the person is an adult will they be treated as such.

Where there is less certainty, the policy directs officers to afford the individual the benefit of the doubt and treat them as a child, pending further assessment by a local authority. These measures will collectively serve to further minimise instances of individuals being mistakenly assessed as adults and provide them with an easily accessible route to seek a remedy where error does occur. There are also a number of safeguards in place to ensure that children are not mistakenly removed to Rwanda. Those who are deemed suitable for the inadmissibility procedure go through either a detained or non-detained route following a case-by-case assessment of their suitability for detention. For those who are not detained, where their age has been disputed by the Home Office, they are at liberty to approach a local authority and ask for a holistic age assessment, which takes into account all relevant information and evidence in relation to the young person. These are led by qualified social workers who are trained to work with children, and it is long-established Home Office policy to give significant weight to any decision on age made by a local authority. There has been no use of X-rays in the context of age assessment since the Nationality and Borders Act came into force.

However, where an individual is assessed by a local authority to be an adult, they are at liberty to challenge that decision through the courts. Where an individual is assessed to be suitable for detention, they will be referred through the detention gatekeeper process. This was introduced in June 2016 and works independently of both referring operational teams and detained caseworker teams to ensure that individuals enter immigration detention only where it is for a lawful purpose and is considered to be a proportionate measure on the facts of the case. If the detention gatekeeper is not satisfied that detention is lawful and proportionate, a referral can be rejected, or returned for further information. This process provides an element of independence in the detention decision-making process and protects potentially vulnerable individuals from being detained when it is not appropriate to do so. This would include individuals for whom there are any reasons to have concerns about the reliability of a decision on age.

Another safeguard is the requirement for regular detention reviews. Our published detention guidance sets out prescribed points at which continued detention must be reviewed. If a person who is detained makes representations that detention is unlawful on the basis that they are a child, the officer conducting the review will consider this and a decision on whether to maintain detention or release must be made as promptly as possible. In addition to monthly detention reviews, individuals also have the circumstances around their ongoing detention considered periodically at a case progression panel. These consist of a chair, panel members and panel experts, who review the appropriateness of continuing detention in accordance with the policy and legal framework.

Those subject to inadmissibility procedures will also have access to legal advice. They will be served with a notice of intent which notifies them that they are under consideration for the inadmissibility process and provides them with an opportunity to make any representations as to why they believe the inadmissibility process should not apply to them before a decision is made; this can include any representations about age. They will have the ability to seek legal recourse where they believe they have been wrongly treated as an adult and placed in detention.

Access to independent legal advice and judicial oversight of the process are two of the most important safeguards against the removal of individuals who may have been incorrectly assessed as adults, and the Home Office will of course fully respect the outcome of any successful legal challenge. Where an individual does put in a legal challenge on the basis of their age, we will of course wait for that to conclude.

Finally, we have in place a provision within the migration and economic development partnership to facilitate the return to the UK of an individual where there is sufficient cause. This would include individuals where it is subsequently established that removal was unlawful on any basis.

In terms of further strengthening the system, and on the point made by the noble Baroness, Lady Lister, we recognise that there is more to do to make the wider system as robust as possible. The age assessment reforms within the Nationality and Borders Act will improve the accuracy of age assessment outcomes, minimising the risk that a person will be incorrectly treated as either an adult or a child.

I close by thanking the noble Baroness, Lady Lister, for securing the debate—

[Baroness Lister of Burtersett (Lab)]

I think we have some time, so before the noble Baroness sits down, I would say that we have identified a gap between theory and practice. The Minister accepts that more work needs to be done but then says that everything will be fine once the Nationality and Borders Act is operational. However, this House rejected the age assessment procedures as taking us backwards rather than forwards. A number of specific questions were asked, which I do not think the Minister has answered. I would be grateful if she could do so subsequently in writing, but could I at least have an assurance, as I asked, that officials will consider seriously the recommendations put forward by the consortium, and that whatever decisions are taken at that meeting are relayed to noble Lords who have spoken in this debate?

[Baroness Williams of Trafford (Con)]

My Lords, I know that this House did not accept the age assessment process, but Parliament did, and eventually this House did not demur on that. I will certainly take back the noble Baroness’s points on the consortium, and I hope that we can make progress in a constructive way. As I say, I look forward to further debates on this issue, because I think it is important that we get it right.

Immigration and Nationality (Fees) (Amendment) Regulations 2022

Baroness Lister of Burtersett Excerpts

Wednesday 6th July 2022 Lords Chamber

Moved by

[Baroness Lister of Burtersett]

That this House, while welcoming the provisions in the Immigration and Nationality (Fees) (Amendment) Regulations 2022 (1) to exempt children looked after by a local authority from the fee charged to register their right to citizenship, and (2) to introduce a discretionary waiver for children on grounds of non-affordability, following the Court of Appeal judgment in PRCBC & O v SSHD, nevertheless regrets the decision to reintroduce the fee charged to other children at the existing level of £1,012 when the cost of processing an application is officially estimated to be £416; and questions (a) whether this is in the best interests of children, and (b) the justification that the level of fee is necessary to protect the funding of the borders and migration system. (SI 2022/581).

[Baroness Lister of Burtersett (Lab)]

My Lords, this is only the second regret Motion that I have moved in my 11 years in your Lordships’ House. It is on the same topic as the first, moved four years ago: the barriers to children registering their entitlement to citizenship created by the exorbitant fee of £1,012. These are children either born here, to parents neither of whom was at the time British or settled, or who have grown up here from an early age and have the right to register as British citizens. A growing number of noble Lords from across the House, now known as “terriers united”, have raised concerns since then. Unfortunately, not all of them are able to be here this evening. With the changing of times, I think some were expecting the debate to be slightly later and cannot make it at this time.

These regulations stem from a legal case brought by the Project for the Registration of Children as British Citizens, of which I am a patron and to which I pay tribute for its unceasing work on behalf of these children. As a Written Statement on the regulations explained, the Court of Appeal found that the Home Secretary had failed in her duty to ensure that when setting the fee, regard had been had to the need to safeguard and promote the welfare of children in the UK, as required by Section 55 of the Borders, Citizenship and Immigration Act 2009. The Home Secretary finally accepted these findings and what is called a children’s best interests review was undertaken.

The regulations represent progress, but I am afraid that they do not go far enough to remove the barriers faced by children whose parents cannot afford the registration fee. I welcome unequivocally the exemption created for looked-after children, although it really should not have taken a court case to achieve this.

--- Later in debate ---

[Baroness Williams of Trafford (Con)]

I apologise to the noble Lord that I do not have those figures to hand. I also beg to ask the question the other way: I assume the amount that litigants are spending on legal fees is quite significant as well.

[Baroness Lister of Burtersett (Lab)]

My Lords, I thank all noble Lords who have spoken. I think they have amplified the case I have made very well indeed. I was struck in particular by the number of noble Lords who pointed out that this is about the morality of what is happening here. I will come on to what the Minister said, but I do not think her response really addressed the fundamental moral question that underlies so many of what may be practical technical points. That is at the heart and why we keep coming back to this issue.

I am very pleased to have a new member of the terriers. There is no waiting list and no fee, I can assure noble Lords. I am also very grateful to the noble Earl, Lord Dundee, who was not able to speak. It was a shame because I think there was confusion about when we were starting. I am pretty sure he was going to speak in support of the Motion—he is nodding—so we can take that as further evidence of cross-party support.

I thought the noble Lord, Lord Russell of Liverpool, made a very good point about training. The Minister said there is training, but how can you train people to work with, as I said, the deep ambiguity at the heart of this guidance? They are being pointed to meeting the fees and making sure that children’s needs are being met, yet at the same time they are being guided—all right it is guidance, but if they do not follow it, what do they follow in terms of assessing people’s expenditure and so forth? We heard from the noble Lord, Lord Paddick, just how minimal that is. This is not what we expect people to be able to spend as members of our society. They are our fellow citizens. The Minister talked about destitution. This is not about destitution. You should not have to be destitute to have help with the fees.

I very much appreciate the detailed response from the Minister. I think there are a few chinks of light in it. She said that the Home Office is open to comments on the guidance and the forms and so forth. I have asked that the PRCBC should be able to sit down with officials and go through the form—because it has so much expertise in putting in these applications—just to see whether we can make it less forbidding. I take heart from the fact that there have already been a number of applications. This shows the latent demand is there, with people who have been waiting because they cannot afford to pay the fee, but I suspect there are many more who would be put off.

Like the noble Lord, Lord Russell of Liverpool, I would find it incredibly difficult to fill in that form and provide that kind of information about my expenditure—I quail at the thought of having to do it over six months, on average—so I hope that one practical thing that emerges from this debate is that the form will be looked at again, together with the people who really know what this is all about and have so much experience of applying.

Although the Minister said that there were no plans to report back to Parliament, she seemed open to thinking about how that could be done. It would be helpful. As I said, we are not going away and we want to know how it is working and whether it is working well. Although I will still regularly question the level of the fee, it is not such an issue if we are happy with the affordability waiver.

At the end, the Minister said something about the complex balance of considerations. It is one thing for Ministers to talk about it, but caseworkers are being asked to consider that complex balance of considerations. That is unfair on individual caseworkers. However much training they get, it is unreasonable. The Government did not answer my plea that they delete from the form the reference to weighing up the implications for the border system. An individual caseworker should not have to weigh that up against the needs of the child, so I ask the Minister specifically to look again at that sentence. It is one thing for us to debate it here in Parliament but another for caseworkers to have to take that into account.

I am very disappointed that the Minister resisted what a number of noble Lords asked: that the best interests review be published. Although she said a bit about it, we need to see exactly what went on and the thinking behind the assessment that came out of it. Obviously, I will want to read what she said.

I will not seek the opinion of the House at this point, because what we wanted to do was to lay out the issues and give warning that we are not going away and will seek other opportunities. As I said before, the terriers will yap at the heels of the Home Office until they are satisfied that children’s best interests are genuinely being met. For the time being, and unless any noble Lord thinks I have left out something crucial, I beg leave to withdraw the Motion.

Motion withdrawn.

Migration and Economic Development Partnership with Rwanda

Baroness Lister of Burtersett Excerpts

Wednesday 15th June 2022 Lords Chamber

[Baroness Williams of Trafford (Con)]

I used to be so grateful to have my noble friend beside me. I am now very grateful for his wisdom behind me, and he is absolutely right.

[Baroness Lister of Burtersett (Lab)]

My Lords, the Refugee and Migrant Children’s Consortium has expressed grave concern that, because of the Government’s flawed approach to age disputes, it is already seeing children who have been detained as adults and issued with a notice of intent to remove them, despite Home Office assurances to the contrary. What steps are being taken to ensure that no unaccompanied asylum-seeking child is wrongly removed as an adult?

[Baroness Williams of Trafford (Con)]

My Lords, my honourable friend Tom Pursglove made clear in the other place that no unaccompanied asylum-seeking child will be sent to Rwanda, and I am sure I repeated it in this House.