Rwanda Asylum Partnership: Removal of Unaccompanied Children

Baroness Williams of Trafford Excerpts

Thursday 21st July 2022 Lords Chamber

[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.