Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Legal Aid for Separated Children) (Miscellaneous Amendments) Order 2019

Lord Bishop of Newcastle Excerpts

Tuesday 1st October 2019 Lords Chamber

[The Earl of Listowel (CB)]

My Lords, I warmly welcome this regulation and the manner in which the Minister introduced it. As vice-chair of the All-Party Parliamentary Group for Children, I have sat in meetings with young people and children in the immigration system and in care, and have heard their concerns and uncertainties about the future. I very warmly welcome this regulation and the careful and sensitive way in which the Minister introduced it. The Children’s Society, as the Minister pointed out, has been a prime mover in this area over many years; indeed, a consortium of charities has been working towards this goal. I am sure we all feel that it is a momentous occasion to have this legislation after so many years for these children—this access to justice for them.

Many of these children will have spent most of their lives in this country. They may well know few or no people in the country they come from. So there may be good humanitarian reasons why they should continue to live in this country. The theme from these meetings is that the earlier one can begin the process towards leave to remain or citizenship, the better—but so very often, these decisions get left until the last minute, when the child has just about reached the age of 18, which is very unsatisfactory. This regulation will make it much easier to act early in the best interests of these children.

I want to ask the Minister about what will become of care leavers. When these children pass the age of 18, or sometimes prior to that age, they become care leavers. They still have some responsibilities due to them from their local authority, but not as strong. I understand that the Government have given some commitment that there will be an expectation that the default position will be that the exceptional case fund will be applied in these cases, but can the Minister confirm that in his response to the debate?

Last year I, along with the noble Lord, Lord Storey, met three care leavers. One of them had experienced some periods in a mental institution; as we know, many care leavers experience a great deal of loneliness when they leave care, and the challenge for him of the uncertainty over his immigration status had damaged his mental health. Another young man was working as a taxi driver, illegally and under the radar, which was a very unsatisfactory state of affairs. These young people, who have had such a difficult start in life, could have their rights better protected by us. This regulation does exactly that, so I warmly welcome it.

[The Lord Bishop of Newcastle]

My Lords, I declare an interest as a vice-president of the Children’s Society. I want to share my delight in the work of the Children’s Society and other children’s charities in helping to bring us to this point.

I warmly welcome the draft order amending the Legal Aid, Sentencing and Punishment of Offenders Act 2012 to bring immigration matters for unaccompanied and separated children within the scope of legal aid. That is a wonderful thing. Without this amendment, children outside their country of origin who are separated from their parent or care giver are at significant risk. The reinstatement of legal aid for separated children will be transformative for some of the most vulnerable children in our country.

However, welcome as the amendment is, it still leaves unresolved, as the noble Earl, Lord Listowel, has said, the needs of these vulnerable young people when they transition to adulthood if their immigration status at that point is still uncertain or temporary. On the day a young person turns 18, everything changes. Protections that have been in place can disappear overnight. This is particularly the case for children in local authority care who become care leavers. The noble Earl referred to this issue in an earlier Question on homelessness. Once children turn 18, immigration legislation kicks in. Where a young person in care has uncertain immigration status, they are particularly at risk of having support from local authorities withdrawn, and they can all too easily become destitute and homeless.

I ask the Minister to assure us that he recognises the vulnerability of care leavers at the age of 18 who have not been able up to that point to regularise their immigration status, and to assure this House that the Government still intend to introduce a presumption of exceptional care funding for care leavers so that they can access legal aid at this critical point in their lives.

[Baroness Meacher (CB)]

My Lords, I too support the draft statutory instrument. I congratulate the Children’s Society for bringing a judicial review against the Ministry of Justice following the passing of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. It was of course that judicial review that led to the tabling of this draft SI.

We ought to note that it is deeply regrettable that for seven years separated children have too often suffered the loss of housing, education and employment, with many becoming destitute. These crises tend to occur as the child turns 18, and access to these services depends more heavily upon a person’s immigration status. The Government were of course warned of the consequences in 2012, but unfortunately it took a judicial review to convince Ministers that the human rights of these separated children have to be respected.

I would like to ask the Minister a few questions, if I may. First, I have a concern about the funding of the services implied by the statutory instrument. The Government anticipate only some 800 children becoming eligible for legal aid under this SI, based on 2012-13 figures. The Children’s Society estimates that a minimum of 12,500 to 15,000 children are potentially likely to become eligible for legal aid under this SI—and those figures do not even include groups such as trafficked children, for example. The Government estimate that the total cost of this SI will be only an average annual figure of £1 million, which of course probably fits about 800. I work that out as about £66 per child, if we take the Children’s Society estimate. Can the Government explain the huge discrepancy between the anticipated numbers given by the Children’s Society and the Government’s own estimate? Have the Government allowed for an increase in the likely numbers of children since 2012-13, in particular taking account of the growth in immigration during this period, and were the 2012-13 numbers unnaturally low anyway, for some reason—because they seem extraordinarily low to me?