Illegal Migration Bill

Lord Bishop of Durham Excerpts

Committee stage
Monday 12th June 2023 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

My Lords, I rise to speak in support of the amendments in the name of the noble Lord, Lord Moylan, and also in the clause stand part debates, to which I was pleased to add my name. He has made the case so clearly and powerfully that I need say only a few words, but I do want to emphasise the significance of these amendments, from the perspective of both citizenship—the practical and symbolic importance of which we debated last year during the passage of the Nationality and Borders Bill—and of children, who are, as we have heard, the main victims of these clauses that deny citizenship rights in perpetuity.

As the noble and learned Baroness, Lady Hale of Richmond, said in the Supreme Court, the “intrinsic importance of citizenship” should never be played down. I thus agree with the Project for the Registration of Children as British Citizens, of which I am a patron, and Amnesty that the provisions are “profoundly misconceived and harmful”. A theme running through our proceedings has been the Bill’s failure to give primary consideration to the best interests of children, as required by the UN convention and Section 55 of the Borders, Citizenship and Immigration Act 2009. The Bill’s citizenship provisions, which really have no place in a Bill focused on irregular migration, target children in a way that is both discriminatory and punitive. Not surprisingly, this is of profound concern to the Refugee and Migrant Children’s Consortium, which advises that this is a

“fundamentally discriminatory approach to citizenship acquisition”

and potentially, as we have already heard, in breach of Articles 8 and 14 of the ECHR. Babies and children will be subject to a “harsh and life-determining penalty” for an immigration breach when they were minors.

Of course, it is deemed to be immaterial that the breach was due to their parents’ rather than their own actions. The Northern Ireland Human Rights Commission warns that the provisions risk discriminating against a child for the actions of a parent, contrary to Article 2 of the UNCRC—a warning echoed in the JCHR report. I also congratulate the JCHR on getting this out so quickly, especially as the Home Secretary apparently did not answer until the last second. In fact, we had already started in Committee before the committee received her reply to its questions, sent some time ago, I believe.

The UNHCR makes a similar point in arguing that punishing a child for the actions of a parent in this way runs counter to Article 34 of the refugee convention, Article 32 of the 1954 convention, and Articles 3 and 7 of the UN Convention on the Rights of the Child. It is an example of how the Bill puts at risk the safety and welfare of children.

I will just give an example—a hypothetical example of how it might work—from the Project and Amnesty. Thomas is brought to the UK as a child. He is so neglected or abused by his parents that the local authority is compelled to apply for, and is granted, a full care order. He is now growing up in the care of the UK state, and his future properly now lies here, meaning that he may be registered as a British citizen under Section 3(1). However, if his entry to the UK was without permission, he will be permanently excluded from his citizenship rights by Clause 31(2). You can hardly blame the child for what has happened.

Both the UNHCR and the JCHR argue that Clause 35 —which, as we heard, gives the Secretary of State the power not to treat a person as ineligible for British citizenship if this is necessary to comply with the ECHR—should be not discretionary but based on compliance or otherwise with the ECHR. The PRCBC and Amnesty argue that the link here is inappropriate —they may well be right—but, if it is going to be made, it should revert to the original wording, as proposed by the noble Baroness, Lady Ludford, in Amendment 98EA. The JCHR expresses puzzlement as to why the Government chose to narrow the available exceptions originally listed, thereby risking contravening international law obligations other than those arising from the ECHR. So, as the noble Baroness, Lady Ludford, asked, can the Minister now explain the justification for doing so?

In conclusion, once again this Government are showing disregard for the importance of citizenship and for the best interests of children. As they have made one welcome concession in this area, I hope that they will accept the strength of the case for removing entitlement to citizenship entirely from the Bill, or, at the very least—and it is the very least—reverting to the original wording of Clause 35.

[The Lord Bishop of Durham]

My Lords, I thank the noble Baroness, Lady Brinton, for tabling Amendment 98I, and I thank Amnesty International and the Project for the Registration of Children as British Citizens for their steadfast support for those who wish to register as British citizens. My friend the right reverend Prelate the Bishop of St Albans, who added his name, was here earlier in the day but was unable to stay through to the evening.

This amendment aims to tackle a matter of great significance that affects the lives of many individuals residing in the UK under British national overseas visas. They include many people from Hong Kong who are rightly entitled to British citizenship but face serious uncertainty about their legal status. Many Hong Kongers have reported appalling responses from immigration officials regarding their children born here, being told that they cannot have any travel documentation and even querying whether they are allowed to become British citizens in the future.

We all know the turmoil and uncertainty that has plagued the people of Hong Kong in recent years—many have been subjected to unimaginable hardships, fearing for their safety and the future of their families—so it is concerning that so many face anxiety about the citizenship status of their children. The people of Hong Kong have shown immense courage and resilience against Beijing’s totalitarian regime, and many of those who have come to the UK face profound challenges, including concern about the safety and security of their families living abroad. The nature of the treatment of protesters and dissidents by the Chinese Communist Party means that many of them are now permanently settling in the UK. This amendment is, simply, testament to our support for the people of Hong Kong, and it ensures that their status is not subject to further confusion.

All the way through Committee, it has appeared that the Minister and his team have set their face against accepting any amendments whatever. Here, I suggest, are two—the well and clearly argued one from the noble Lord, Lord Moylan, and this one from the noble Baroness, Lady Brinton—on which they could really give something tonight.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, as noble Lords will see, my name is attached to the amendment from the noble Baroness, Lady Brinton, and I support it. I am a patron of both Hong Kong Watch and another human rights organisation, The 29 Principles, relating to what is happening in Hong Kong and China. I, too, have been lobbied by many young people and Hong Kong families here, who have fled because of the threats to their safety back in Hong Kong. They face great difficulties and uncertainties around the status of their children. I will not rehearse all of the arguments that noble Lords have heard.

Having heard the noble Lord, Lord Moylan, make an eloquent argument about the whole business of citizenship, and listening to my noble friend Lady Lister, I support this clause stand part proposition. Our special relationship with Hong Kong, and our special duties and responsibilities concerning those people, should be at the forefront of this Government’s mind.

--- Later in debate ---

Moved by

[The Lord Bishop of Durham]

121: Clause 55, page 56, line 21, leave out subsection (2).
Member's explanatory statement
This amendment reinstates the right of appeal against age assessments in respect of putative children whom there is a duty to remove under the Bill.

[The Lord Bishop of Durham]

My Lords, in moving Amendment 121 I shall speak to Amendments 122 and 126 in my name. I am grateful to the noble Baronesses, Lady Lister and Lady Neuberger, for their support. My comments will also be in support of Amendments 124 and 125, which were tabled by the noble Baroness, Lady Lister.

Before I get going, I note that on the Nationality and Borders Bill the debate on age assessment took place at 2.30 am on 9 February last year. We now find ourselves at 12:25 am discussing age assessments once again. Age assessments are serious matters. I know that it was not designed that this has happened again but it is extremely unfortunate, and since we have more time on Wednesday, I think we could have moved this to Wednesday. However, we have not, so I will carry on.

I believe strongly that these changes need to be made to Clauses 55 and 56 if we are to ensure that the welfare and best interests of children are protected. I will try to be brief, but they are critical amendments that are worthy of full consideration. It is vital that we adequately scrutinise the impact this Bill will have on children; it is therefore a failure in their safeguarding responsibility for the Government not even to have produced a child rights impact assessment. They are asking this Chamber to agree to these additional clauses on age assessments, added on Report in the other place, which on their own admission are more likely than not to be incompatible with conventions under the ECHR—not on the rights of anyone here today but on the rights of children. We have a duty to ensure that their voices are heard. Will the Minister guarantee that an assessment will be published before Report?

The Home Secretary’s duty to detain and remove all those who meet the conditions laid out in Clause 2 does not apply to unaccompanied minors before they reach the age of 18. Therefore, it is clear that if the Home Office inaccurately assesses the age of a child and deems them to be an adult when this is not the case, and they are subsequently removed, the consequences would be irreversible. Can the Minister confirm that the removal of a child in these circumstances would be unlawful?

I was going to follow up by asking whether, in these circumstances, steps would be made to retrieve the child and bring them back under the child protection system in the UK, but the Bill also introduces no right of appeal for a child to challenge an age assessment and places significant limitations on judicial review, so we may not know whether a child has been deported unlawfully. I therefore ask the Minister: when a judicial review is ongoing and the claim is continued out of country and is successful, will arrangements be made for this child to be returned to the UK?

The lack of data required adequately to scrutinise this legislation has been a common theme throughout the Bill and is a prevalent issue for age assessments. The Government currently do not share how many age dispute cases are of children who have initially been sent into the adult system after a flawed decision on their age. However, even based on the incomplete data published by the Home Office, we can see that last year nearly two-thirds of all age dispute cases were found to be children—that was 1,042 children who, if this Bill had been in operation, would have been eligible for removal to a third country.

Numbers are important. The Minister of State justified the inclusion of Clauses 55 and 56 in the Bill by saying that

“around 50% of those people who are assessed are ultimately determined to be adults”.—[Official Report, Commons, 26/4/23; col. 777.]

Can the Minister confirm that this figure is misleading, given that it includes individuals subsequently found to be children after referral to a local authority? A detailed report by the Helen Bamber Foundation found that, of the 1,386 individuals referred to local authorities in 2022, 867 were found to be children and had therefore been placed at risk of significant harm when in adult-based accommodation.

It is not surprising that visual-age assessments by immigration officers can lead to inaccurate judgments. The Home Office’s own guidance for the National Age Assessment Board states clearly that

“physical appearance is a notoriously unreliable basis for assessment of chronological age”

and

“demeanour can also be notoriously unreliable and by itself constitutes only somewhat fragile material”.

Given this acknowledgement, can the Minister confirm that when an individual’s age is disputed, they will not be subject to removal before having met with a social worker and child protection team for a more comprehensive age-assessment process?

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

We have already canvassed these topics, but there are many ways for a decision-maker to take a refusal to consent into account. It need not be an automatic presumption that somebody is of age; it can be treated in a variety of potential ways, which will be described in the regulations. They will be subject to debate at that time. I am afraid that that is the answer to the noble Lord’s question.

[The Lord Bishop of Durham]

I thank all noble Lords for contributing to the debate and for interjecting during the Minister’s response with many of the questions that I noted. I repeat what I said earlier: the Minister of State justified the inclusion of Clauses 55 and 56 in the Bill by saying that

“around 50% of those people who are assessed are ultimately determined to be adults”.—[Official Report, Commons, 26/4/23; col. 777.]

To be fair, the noble Lord, Lord Murray, said just under 50%, which is a slight change.

However, I went on to ask whether the Minister could confirm that this figure is misleading, given that it includes individuals subsequently found to be children after referral to a local authority. He has not answered that question, but please do not try to do so now; please write. The Helen Bamber Foundation found that 1,386 individuals were referred to local authorities in 2022, of whom 867 were found to be children. That is about 62% to 63%. Clearly, several of us are going to read Hansard very carefully and we would like the Minister to go away and reflect on the figures a bit further.

For all the reasons that have been raised by colleagues, who I thank for all their support—I also thank the noble and learned Lord, Lord Hope, for his additional proposal, which makes complete sense—the Minister will not be surprised that we are likely to return to this on Report, because we think these things matter enormously.

I think there is an assumption made by the Home Office that it is adults pretending to be children; most of us come at it the other way round, and are worried about children who are deemed to be adults and are therefore placed in unsafe places. Somewhere, the two have got to meet and talk with each other and consider each other. I suggest that the Home Office has some very good conversations with the DfE, social workers and health professionals about how to understand children and how they work, including children who are 16 and 17 years old, because they are still not adults. However, I beg leave to withdraw my amendment.

Amendment 121 withdrawn.