European Convention on Human Rights

Lisa Nandy Excerpts

Tuesday 19th June 2012 Commons Chamber

[Mrs May]

I shall come on to speak in more detail about the best interests of a child. The best interests of a child are covered by the Borders, Citizenship and Immigration Act 2009, and we are bringing that into the family rules.

[Lisa Nandy (Wigan) (Lab)]

On that point, will the Home Secretary give way?

[Mrs May]

I shall speak in more detail about the best interests of the child, so perhaps the hon. Lady will wait and see if I answer her query in the comments that I make.

On the criminality issue first, the test for private life will also be a stringent one. Deportation will be proportionate unless the foreign criminal has been continuously resident in the UK for at least the past 20 years, excluding any period of imprisonment, and they have no social, cultural or family ties with their country of origin. For offenders aged under 25, deportation will be proportionate unless they have spent at least half their life residing continuously in the UK, excluding any period of imprisonment, and they have no ties with their country of origin. In all other cases, other than in exceptional circumstances, deportation of the foreign criminal will be proportionate.

[Mrs May]

May I make a little more progress? My hon. Friend may choose to try again when I have finished dealing with this issue.

For the most serious foreign criminals—those sentenced to four or more years in prison—deportation will almost always be proportionate. Article 8 rights should prevent deportation of serious foreign criminals only in the most genuinely exceptional circumstances. So I ask the House to agree that the rights of the British public should outweigh the rights of foreign criminals in the way the new immigration rules describe. The choice for a foreign national wishing to avoid deportation is now simple: do not break the law.

I said that I would come on to the best interests of a child. The best interests of a child in the UK must always be a primary consideration. That is what the law requires and the new immigration rules reflect how the best interests of a child should be taken into account in striking a proportionate balance between an applicant’s family life and the public interest, for both criminals and non-criminals. For non-criminals, where a child would have to leave the UK as a consequence of the decision to remove their parent, the question is then whether it is reasonable to expect the child to leave. The best interests of the child will normally be met by remaining with their parents and returning with them to their country of origin, unless the child is a British citizen or has been resident in the UK for at least the past seven years and it would not be reasonable to expect the child to leave the UK.

For criminal parents, there is a broader range of circumstances in which the public interest may outweigh the best interests of a child. For serious foreign criminals, those sentenced to four or more years, the best interests of a child will only outweigh the public interest in deportation of the foreign criminal in exceptional circumstances. For criminals sentenced to between 12 months and less than four years, or those sentenced to less than 12 months but whose offending has caused serious harm or who are persistent offenders and show a particular disregard for the law, deportation will still normally be proportionate.

[Lisa Nandy]

I am grateful to the Home Secretary for giving way; I know that she wants to make some progress. Can she give an assurance that decision makers will not try to second-guess what is in the best interests of a child? We would not accept that in any other form of decision making relating to children. The individual circumstances of the child must be considered in the decision-making process.

[Mrs May]

One of the points about what we are doing, to which I tried to allude earlier, is that there is a statutory duty—in section 55 of the Borders, Citizenship and Immigration Act 2009—to safeguard and promote the welfare of children in the UK. We are now bringing the consideration of the best interests of the child formally into the new immigration family rules, which reinforces that point.

I was talking about criminals who have been sentenced to between 12 months and less than four years or who are persistent offenders. Article 8 will prevent a deportation only if they have a genuine and subsisting parental relationship with the British citizen child or a child who has lived in the UK for at least the last seven years, if it would not be reasonable to expect the child to leave the UK with the foreign national criminal and if there is no other family member able to care for the child in the UK. Unless all three conditions are met, it will normally be proportionate to deport the criminal. If the criminal’s child is not a British citizen and has lived in the UK for less than seven years, the criminal can still be deported. If it will be reasonable to expect the child, whatever their nationality, to leave the UK, the criminal can still be deported. If there is another family member who can care for the child in the UK, the criminal can still be deported. These requirements represent a rational and proportionate qualification of article 8 rights in the interests of public safety and security, and I invite the House to endorse them.

--- Later in debate ---

[Lisa Nandy (Wigan) (Lab)]

I am grateful for the opportunity to raise my concerns about the impact that the immigration rules will have on children in particular. Before I came to this place I had the privilege of working with the Minister, and I know that he is committed to the welfare of children in the immigration system. We worked together to ensure that there was a commitment to ending the immigration detention of children, which has been hugely important to many children. We also both worked hard to ensure that the last Government extended the Children Act duty to those children, which is particularly relevant to today’s debate.

The statement of intent on family migration, which was published in advance of the new article 8 immigration rules to which the Home Secretary referred extensively, takes heed of the duty on the UK Border Agency under section 55 of the Borders, Citizenship and Immigration Act 2009 to have regard to the need to safeguard and promote the welfare of children while they are in the UK. Many of us fought very hard for that legislation, because immigration officials have been given increasing powers over the years without a counterbalance in law to ensure the protection of children. That section created a duty to consider a child’s best interests in decisions that affect them, and to weigh those interests against other considerations such as criminal convictions, which we have talked so much about today. That already happens in article 8 determinations.

My concern is about how narrowly a child’s “best interests” are defined in the statement of intent that was published in advance of the new immigration rules. It states:

“The best interests of the child will normally be met by remaining with their parents and returning with them to the country of origin, subject to considerations such as long residence in the UK and exceptional factors.”

During the many years in which I worked with refugee and migrant children in the Children’s Society, I dealt with many cases in which that was plainly not the case, as I am sure have other Members. I will give a few examples.

I dealt with countless cases in which girls would have been subjected to female genital mutilation if they were returned to their home country. I also dealt with the case of a young girl whose father was from Eritrea and whose mother was from Ethiopia. Huge consideration had to be given to her safety and welfare, given the state of relations between those two countries. There were also many cases of child abuse. One in particular really sticks in my mind. There was a child who we believed may have been subjected to abuse by her own parent, and in the end that did turn out to be the case. In that sort of occurrence, it is clearly not in the interests of the child to be removed with the adult. The Minister might say, “There is an exception. Discretion is written into the rules,” but my concern is that marking out a clear presumption that it is in the best interests of a child to be returned will direct UK Border Agency and court officials and deter them from making proactive decisions.

Since the tragic death of Victoria Climbié and the Lord Laming report that followed, we have come a long way in ensuring that all agencies, including the UK Border Agency, the courts and others, understand that they have a shared responsibility to safeguard children. That involves not only the reactive child protection approach, but a proactive approach. The measure might well unravel a great deal of the progress that has been made with the UK Border Agency and such children.

I am sure Ministers will say that discretion remains with the courts, even if there were no such concerns, but I share the view put forward forcefully by Amnesty International—that, effectively, the measure seriously limits the courts’ discretion. In the example I gave, if those factors had not been proactively investigated by UK Border Agency, it is hard to see how a decision to remove the child with the parent would be challenged in court, because the investigation would not take place and the evidence would not exist.

Furthermore, during the decade that I dealt almost daily with the UK Border Agency, I saw a culture that worked against the full investigation of human concerns. Little that I have seen since being elected to the House has convinced me that that has changed. In fact, if anything, with staffing cuts and increased pressure on UKBA staff, the situation is getting worse, not better. Case owners work to targets, and in particular to time-limited targets. Speed matters. Too often, there is a tick-box exercise rather than a full investigation of the facts. I have seen for myself how that tick-box exercise happens without a proper assessment of children’s needs prior to their detention. The Government rightly took a stance against that; I hope that they take a similar stance to protect children in respect of this measure.

When I worked for the Children’s Society, I was often called upon to deliver training for UKBA staff. One thing that struck me was their willingness to equip themselves with the skills and knowledge they needed to protect children, and to think creatively and more widely. However, people came to me time and again and said, “I’m really not sure that this is my responsibility. I am meant to be looking at so many other overriding concerns, including immigration concerns.” The child’s welfare and immigration considerations often conflict. The staff need clarity and certainty that the child’s welfare is a priority, and that they should not take actions to meet targets if it means that they do not fully and proactively investigate child protection concerns.

I hope the Minister considers that concern after the debate, but I am also concerned about the prescription in the statement of intent, which sets out that deportation will be presumed in cases involving criminality that results in a custodial sentence of between 12 months and four years unless the person has

“a genuine and subsisting parental relationship with a British citizen child or a child who has lived in the UK for at least the last seven years, and it would not be reasonable to expect the child to leave the UK with the foreign national criminal and there is no other family member who is able to care for the child in the UK”.

The seven-year rule, which no longer exists, was a useful indicator of whether someone had established a private life in the UK, but such detailed prescription surely has limits. I struggle to see how the seven-year prescription could be helpful to the courts. Why, for example, should a child who has been here for five years, who was born here and spent most of their life here, and who faces the prospect of returning to a country about which they know nothing, where they have no family and do not speak the language, have a less powerful claim to have established a private life than a child who has been here for eight years, but who faces the prospect of returning to country where they have family and people they know, friends and ongoing relationships, and where they speak the language? My concern is that the measure takes away the important ability to test the strength of the relationship ties that children have formed in the UK, which is the basis of article 8 decisions.

Moreover, I am concerned that hon. Members are being invited to make assumptions about the situation of children whom we know nothing about. We would never accept that for citizen children, and we should not accept it for non-citizen children. I urge Ministers to look again at the measure.