Immigration Bill

Debate between Earl of Sandwich and Lord Watson of Invergowrie

Tuesday 1st April 2014 Lords Chamber

[The Earl of Sandwich (CB)]

We had a long discussion about children earlier in the afternoon, and I am bringing back the subject of children today under the heading of “deportation”. This amendment is about the children of parents who are facing deportation. The Minister may remember that I was away for most of Committee, but I mentioned it at Second Reading and pointed out that, under the Bill, against the advice of the JCHR, individuals removed from this country may be prevented from challenging their deportation if they are no longer in the UK, and that their children, if separated from them for this or for other reasons, may be in particular difficulty. The noble Baroness, Lady Hamwee, expressed similar concerns in her amendment in Committee.

If the parent is removed, how will the Home Office discover the true situation of the child? As the noble Lord, Lord Pannick, said in that debate, in the light of the changes going on to judicial review, and other changes, there are real concerns about whether an effective practical remedy will remain available. The noble Lord, Lord Avebury, also brought this issue up earlier today. There will be huge practical barriers to individuals appealing their deportation from abroad. Such cases often turn on issues of credibility. Appellants will be severely disadvantaged by not appearing in court and, in the present climate of legal aid cuts, they will face serious problems in accessing any legal advice.

The noble Baroness, Lady Hamwee, had difficulty with a similar amendment, which is why I am bringing it back with an additional reference to the UN Convention on the Rights of the Child. Not surprisingly, this convention states that the child should not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine that such separation is necessary for the best interests of the child. Earlier, the noble Lord, Lord Taylor, gave yet another assurance on this. I note that Amendment 58 is about a duty regarding the welfare of children, and that the amendment in the name of the noble Lord, Lord Watson, concerns the best interests of children.

This matter surely also covers the point made in a previous debate by the noble Lord, Lord Bourne, that there might be ambiguity about what the best interests of the child were, and that the child might be better off with relations abroad. However, that does not, of course, cover every case. According to legal experts I have consulted, the safeguards under the Bill are insufficient. The noble Baroness, Lady Smith, said that there was still uncertainty in the clause as it stands. Therefore, my first question is: how will the Government consider a child’s best interests before deporting a parent to appeal from abroad?

The noble and learned Lord, Lord Wallace, said that the power was a discretionary one, applied only where there is not a risk of serious irreversible harm, and that it will therefore not be applied in all Article 8 cases. However, a parent’s deportation may result in grave harm to a child that is not irreversible. Therefore, my second question is: will parents be deported before an appeal in cases where this action will cause serious harm to their child, but only serious harm that the Home Office deems will not be irreversible? In Committee, the noble and learned Lord made it clear that we are dealing largely with criminals as well as failed asylum seekers. That may be so, yet one in three of these people does not fall neatly into that category; we know that because, in 2012-13, 32% of deportation appeals succeeded.

A number of these cases concern parents with British children or settled children who would be significantly harmed by their parents’ deportation. There are plenty of examples from the children’s consortium and Bail for Immigration Detainees which I will not relate today. However, the 2013 UNHCR report highlighted cases where Home Office decision-makers failed adequately to consider the child’s best interests, including in relation to Article 8 of the ECHR. The Home Office can already prevent repeated appeals by certifying claims as clearly unfounded, but Clause 16(3) will prevent people with arguable cases accessing justice.

The noble and learned Lord gave the assurance that, in exceptional circumstances, the power would not be applied—so what are the exceptional circumstances? It is argued that exceptional funding also provides a safeguard. However, the Joint Committee found in December 2013 that out of 746 people who had applied for exceptional funding, only 15 were granted funding, and two of those were immigration cases. We are back to the same old argument. In the experience of Bail for Immigration Detainees, detainees seldom have the skills needed to make their own applications—I know that the noble and learned Lord has heard this time and time again, but it is true—and solicitors rarely make applications because the work has to be done at the risk of non-payment.

I will give just one case study: that of Simone and Ray. Simone was trafficked into prostitution in the UK for three years and was then convicted of a drug-related offence. Her son, Ray, was a British citizen. He was less than one year old when she was arrested, and nearly four by the time of her release. During her sentence, he repeatedly asked for his mother, cried in his sleep, stopped eating properly and screamed uncontrollably after phone conversations with her.

The Home Office argued that Ray could leave the UK with Simone, but by this time he had close bonds with his father, who could not leave the UK for other reasons. Simone successfully appealed her deportation—but if Clause 16 becomes law, people like her will be deported before they can appeal.

Finally, as we are talking about removals, I heard only yesterday that the Home Office has decided to stop offering assisted voluntary return to anyone held in immigration detention as of today, 1 April. This scheme is operated by Refugee Action, through its Choices service. What is the purpose in ceasing to offer assisted voluntary return to those in detention? Do the Government not appreciate the negative effect this will have on removals and on the co-operation of detainees? I beg to move.

[Lord Watson of Invergowrie (Lab)]

My Lords, I shall speak to Amendments 16 and 20 in this group, which appear on the Marshalled List in my name.

Amendment 16 would ensure that the Bill recognised that the promotion of the best interests of the child is not simply a matter of the rights to be interfered with being in the public interest but that the promotion of those best interests is, in itself, in the public interest. In its current form, Clause 18 does not allow for proper consideration of the best interests of all children, as required by UK and international legislation. Despite government Amendment 58 reiterating their commitment to the Secretary of State’s duty under Section 55 of the Borders, Citizenship and Immigration Act 2009, Clause 18 does not make clear the need for the best interests of children to be a primary consideration in any Article 8 case involving a child. That includes those who are not British citizens and those who have not lived in the UK for at least seven years.

Amendment 58 does not address the concerns raised by non-governmental organisations, including the Refugee Children’s Consortium, about the lack of an explicit provision in Clause 18 to have regard to children’s best interests. What is required is a provision stipulating what judges must have regard to in the public interest when considering Article 8 of the European Convention on Human Rights in respect of family and private life.

Courts and judges are not under a statutory obligation to comply with the Section 55 duty. Instead, they review the Home Secretary’s decisions and actions in the light of her own duties. The courts have made it clear that children’s rights are a clear public interest consideration in addition to their own personal interests. As the Joint Committee on Human Rights notes in its scrutiny of the Bill, Parliament is entitled to put into primary legislation that which it considers to be in the public interest. The lack of a clear statement setting out the importance of children’s best interests as a factor to be considered creates a risk that children’s best interests will not be taken into account as a matter of public interest to the same degree as those public interest considerations listed in Clause 18. In its evidence to the Bill Committee, the Immigration Law Practitioners’ Association stated that Clause 18 directs attention to some factors at the expense of others. The most obvious missing factor is the best interests of children.

In 2012, the Supreme Court held in the case of HH—UKSC 25—that children’s interests are also public interests and not just private rights, stating,

“although the child has a right to her family life and all that goes with it, there is also a strong public interest in ensuring that children are properly brought up”.

In this respect, the Bill is not consistent with established case law and gives the impression that children’s interests amount to no more than the private and personal interests of an individual and their family. They clearly amount to more than that and this should be reflected in the Bill.

Amendment 20 reflects the fact that “unduly harsh” is an incorrect test of the context of considering what is best for a child, whereas “disproportionate” is known and well understood. New Section 117C of the Nationality, Immigration and Asylum Act 2002, inserted by this Bill and relating to Article 8 of the European Convention on Human Rights, states:

“Exception 2 applies”—

where there is—

“a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C’s deportation on the partner or child would be unduly harsh”.

The “unduly harsh” test in relation to children is not consistent with the best interests principles. This test of “unduly harsh” is a legally defined term within the context of refugee protection and internal relocation. I should like to cite an example and I do so in due deference to the noble and learned Lord, Lord Hope. I hope that he will not mind if I quote from a case over which he presided in 2007—the case of the Secretary of State v AH (Sudan) and others. In that judgment, the noble and learned Lord was quoted as having stated in another case:

“‘The question ... is whether it would be unduly harsh to expect a claimant who is being persecuted for a Convention reason in one part of his country to move to a less hostile part before seeking refugee status abroad. The words ‘unduly harsh’ set the standard that must be met for this to be regarded as unreasonable. If the claimant can live a relatively normal life there judged by the standards that prevail in his country of nationality generally ... it will not be unreasonable to expect him to move there’”.

However, I do not believe that that test can be applied within the context of considering children’s best interests. Surely a child should not be expected to live a relatively normal life judged by the standards that prevail. That is not and, I submit, cannot be a best interests consideration. When considering a child’s best interests, a range of issues need to be taken into account, such as the child’s immediate safety and their access to, and the quality of, vital services such as healthcare and education. In addition, under the UN Convention on the Rights of the Child, every child has a right to be cared for by his or her parents. In fact, Article 9 says:

“States … shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests”.

The audit carried out by the UNHCR last year of Home Office procedures highlighted that there is no systematic collection or recording of the information necessary and relevant to a quality best-interests consideration in family cases. This includes a lack of any mechanism to obtain the views of the child and to give those views weight in line with age and maturity. Research carried out by the Greater Manchester Immigration Aid Unit into unaccompanied children’s asylum cases found that in 24 of 34 cases analysed, the Home Office failed to carry out any determination of the child’s best interests at all. The Joint Committee on Human Rights highlighted similar concerns in its scrutiny of this Bill, noting that without further clarity,

“there is a danger that front-line immigration officials … will be unclear about the relationship between the children duty in s. 55 and the new tests … which use different and unfamiliar language”.

The Government have said that, despite the introduction of tests in the courts, the courts would still be bound by the duty to promote the welfare of children under Section 55 of the Borders, Citizenship and Immigration Act 2009 for all cases involving children. However, Clause 18 is likely to add further confusion, not least for decision-makers, as to how best interests are to be considered. Therefore, I believe that effective judicial oversight is crucial in ensuring that children’s best interests are taken into account in any case involving a child, and these considerations need to be made clear in the Bill.

In conclusion, considering whether it would be duly harsh to separate a child from his or her parent is inconsistent with the obligations to consider the child’s best interests. Perhaps I might invite the Minister to explain just what he understands “duly harsh” and “unduly harsh” to mean. At precisely what point does “duly harsh” become “unduly harsh”, and who decides where the line is crossed? The use instead of the term “disproportionate” at least allows for a balancing exercise within the well established approach to interference with Article 8 rights, which must include consideration of best interests. I very much hope that the Minister will take these points on board and I look forward to his response.